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..V 



jV 



Publications of the 

Carnegie Endowment for International Peace 

Division of International Law 

Washington 



THE 

CLASSICS OF INTERNATIONAL LAW 

edited by 
James Brown Scott 

President of the Institute of International Lazv 
President of the American Institute of International Law 



DE JURE BELLI AC PACIS 
LIBRI TRES 

By Hugo Grotius 



Vol. I. A Photographic Reproduction of the Edition of 1646, with 
a Portrait of Grotius. 

Vol. II. A Translation of the Text, by Francis W. Kelsey, with 
the collaboration of Arthur E. R. Boak, Henry A. 
Sanders, Jesse S. Reeves, and Herbert F. Wright, with 
an Introduction by James Brown Scott. 






This volume with Volumc 


1 constitules 


No. 3 of 'The Classics 


of lnterna- 


tional Law'. A list of 


the numhers 


abeady published is given 


at the end 


oj ihis volumt. 





i.nfernal. 

DE JURE BELLI AC PACIS 



LIBRI TRES 

BY 

HUGO GROTIUS 



VOLUME TWO 

THE TRANSLATION 
BOOK III 

By Francis W. Kelsey 

WITH THE COLLABORATION OF 

ARTHUR E. R. BOAK, HENRY A. SANDERS, 
JESSE S. REEVES and HERBERT F. WRIGHT 

AND AN INTRODUCTION BY 

JAMES BROWN SCOTT 




OXFORD : AT THE CLARENDON PRESS 

LONDON : HUMPHREY MILFORD 

1925 



Printed in England 

At the Oxford University Press 

By John Johnson 

Printer to the University 



[4 2 4l 
HUGO GROTIUS 



ON 



THE LAW OF WAR AND PEACE 



BOOK III 



^S^- 2 ! s s 597 



CHAPTER I 

GENERAL RULES FROM THE LAW OF NATURE REGARDING WHAT 

IS PERMISSIBLE IN WAR ; WITH A CONSIDERATION 

OF RUSES AND FALSEHOOD 

I. The order of treatment in the discussion which follows 

We have considered both those who wage war and on what 
grounds war may be waged. It follows that we should determine 
what is permissible in war, 1 also to what extent, and in what ways, 
it is permissible. 

What is permissible in war is viewed either absolutely or in 
relation to a previous promise. It is viewed absolutely, first from 
the standpoint of the law of nature, and then from that of the law 
of nations. Let us see, then, what is permissible by nature. 



II. The first rule : In war things which are necessary to attain the 
end in view are permissible. This is explained 

1. First, as we have previously said on several occasions, in 
a moral question things which lead to an end receive their intrinsic 
value from the end itself. In consequence we are understood to 
have a right to those things which are necessary for the purpose 
of securing a right, when the necessity is understood not in terms of 
physical exactitude but in a moral sense. By right I mean that 
which is strictly so called, denoting the power of acting in respect to 
society only. 

Hence, if otherwise I cannot save my life, I may use any degree 
of violence to ward off him who assails it, even if he should happen 
to be free from wrong, as we have pointed out elsewhere. The reason is 
that this right does not properly arise from another's wrong, but from 
the right which nature grants me on my own behalf. 

2. Furthermore, [425] I can also take possession of another's 
property from which an imminent danger threatens me, without 

1 It has been well said by Augustine, Letters, lxx [ccxx. 12], To Count Boniface: 'May you, in 
war itself, if it is still necessary for you to engage in war, cleave to the faith, and seek peace.' Again 
in Letiers, ccv [clxxxix. 6] : ' Be therefore a man of peace, even when engaged in war.' 

Regarding the maintenance of justice in waging war, [437] there is an excellent discourse of 
Belisarius to his soldiers in Procopius, Vandalic War, I [I. xvij. Orosius, Book VII [VII. xxi], says : 
' Behold in what fashion civil wars are waged by Christian kings in Christian ages, when they cannot 
be avoided.' The same author [VII. xxiii] refers thus to Theodosius : ' Let them mention some one 
war, from the time of the founding of the city, which was undertaken by reason of so righteous a neces- 
sity, and concluded with so divine a felicity, that battle did not exact great slaughter cr victory a 
bloody vengeance.' 

1569-27 S S 2 599 



Victoria, 
De Iure 
Belli, 
no. 15. 



[II. i. 3.] 



Victoria, 
De Iure 
Belli, 

nos. 18, 39, 
and55- 



600 On the Law of War and Peace [Booklll 

taking account of the other's guilt ; yet not in such a way as to 
become its owner (for this procedure is not adapted to that end), 
but in order to guard it until adequate security has been given for 

ii. ii. io. my safety. This point also we have treated elsewhere. 

Thus I have by nature a right to seize property of mine which 
another is holding ; and if such seizure is too difficult I have the right 
to seize something else of equal value, as in the case of recovering 
a debt. From these causes ownership also arises, because the equality 

Syivester, which has been disturbed can in no other way be restored. 

7um,\! 1 3- Where therefore the punishment is just, all use of force 

no. 10, necessary for the infliction of the penalty is likewise just ; and every- 

thing which is a part of the penalty, as the destruction of property 
by fire or by other means, is certainly within the limit of that which 
is just and befits the crime. 

III. The second rule : A right is to be viewed as arising not only from 
the origin of the war but alsofrom causes which subsequently develop 

In the second place the fact must be recognized that our right 
to wage war is to be regarded as arising not merely from the origin 
of the war but also from causes which subsequently develop ; just 
as in lawsuits a new right is often acquired by one party after suit has 
been brought. Thus those who associate themselves with him who 
assails me, either as allies or subjects, confer upon me the right to 
protect myself against them also. 

In like manner those who join in a war that is unjust, especially if 
they can or ought to know that it is unjust, obligate themselves to 
make good the expenses and losses incurred, because through their 
guilt they cause the loss. Similarly, those who join in a war that 
has been undertaken without a cause worthy of approval draw upon 
themselves the desert of punishment, in a degree proportionate to the 
[Repubik, injustice which lies in their action. For this reason Plato approves 
47xb.i" f war ' until the guilty are compelled, by the guiltless who have 
suffered, to pay the penalty \ 

IV. The third rule : Some things, which are not permissible according 
to the purpose of a war, may follow therefrom without wrong ; a 
precaution is added 

i. In the third place, it must be observed that in addition to 
victona, the right of action many things follow indirectly, and beyond the 
no'.i7.' purpose of the doer, 1 for which in and of themselves a right would 
[ii. i. 4] not exist. We have explained elsewhere how this may occur in a case 

* See on this point Thomas Aquinas, II. i, qu. 73, art. 8 ; Molina, tract. ii, disp. 121 



Chap. 1] Rules regarding what is Permissible in War 601 

of self-defence. Thus in order to obtain what is ours, if we cannot 
get that by itself, we have the right to accept more, subject to the 
obligation, nevertheless, of restoring the value of the excess. Similarly 
we may bombard a ship full of pirates, or a house full of brigands, 
even if there are within the same ship or house a few infants, women, 
or other innocent persons who are thereby endangered. Says 
Augustine : ' A man is not guilty of homicide if he has built a wall 
about his property and another is killed by the fall of it when trying 
to make use of it.' 

2. But, as we have admonished upon many occasions previously, 
what accords with a strict interpretation of right is not always, or in 
all respects, permitted. Often, in fact, love for our neighbour prevents 
us from pressing our right to the utmost limit. 

Wherefore we must also beware of what happens, and what we 
foresee may happen, beyond our purpose, unless the good which our 
action has in view is much greater than the evil which is feared, or, 
unless the good and the evil balance, the hope of the good is much 
greater than the fear of the evil. The decision in such matters must 
be left to a prudent judgement, but in such a way that when in 
doubt we should favour that course, as the more safe, which has 
regard for the interest of another rather than our own. ' Let the 
tares grow ', said the best Teacher, ' lest haply while ye gather up 
the tares ye root up the wheat with them.' Said Seneca : ' To kill 
many persons indiscriminately is the work of fire and desolation.' 
History teaches us with how deep repentance Theodosius, on the 
admonition of Ambrose, expiated such an unrestrained vengeance. 

3. Further, if at times God does something of this kind, it is 
not for us to take that as an example, in view of the most perfect 
[426] right of dominion which He has over us, but which He has 
not granted to us over one another, as we have noted elsewhere. 
And yet God Himself, lord of men in His own right, is wont to spare 
a community of evil men, however large, for the sake of a very few 
good men ; in this He makes manifest His fairness as a judge, as the 
conference of Abraham with God regarding Sodom clearly teaches us. 

From these general rules we may learn how much is by nature 
permissible against an enemy. 



[II. xxi. 
14.] 



V. What is permissible against those who furnish supplies to our 
enemies is explained through distinctions 

1. But there often arises the question, What is permissible 
against those who are not enemies, or do not want to be called 
enemies, but who furnish our enemies with supplies ? For we know 
that this subject has been keenly debated in both ancient and modern 



602 



On the Law of War and Peace 



[Book III 



Procopius, 



[On Bene- 

fiis, VII. 
xx.] 



On Duties, 

I. XXX 

[144]. 



[II.ii.6.] 

Dccretals, 
V. vi. 6 
and 17. 



times, since some champion the relentlessness of warfare and others 
the freedom of commercial relations. 

2. First, we must make distinctions with reference to the 
things supplied. There are some things, such as weapons, which are 
useful only in war ; other things which are of no use in war, as those 
which minister to pleasure ; and others still which are of use both in 
time of war and at other times, as money, provisions, ships, and naval 
equipment. 1 

Regarding the first class of things, the saying of Amalasuntha to 
Justinian holds true, that he who supplies an enemy with things 
necessary for warfare is on the side of the enemy. 

Things of the second sort give rise to no complaint. Thus Seneca 
says that he will do a favour to a tyrant, if the kindness will not give 
to the tyrant greater powers for the ruin of all 2 nor strengthen the 
powers which he has ; that is, a kindness which may be done to him 
without harm to the state. In explaining this Seneca adds : 

Money, by means of which a satellite may be kept in service, I shall not supply. 
If he shall desire marbles and robes, that which his luxurious taste amasses will harm no 
one ; soldiery and arms I shall not furnish. If, as a great favour, he seeks craftsmen of the 
stage and things which may soften his savagery, I shall gladly proffer them. To him to 
whom I would not send triremes or ships with bronze rams, I shall send pleasure craft, 
and sleeping-barges, and other follies of kings who revel on the sea. 

In the judgement of Ambrose, to be generous toward him who 
conspires against his country is not approvable liberality. 

3. Regarding things of the third sort, useful in both war and 
peace, we must take into account the conditions of the war. For, if 
I am unable to protect myself without intercepting the goods which 
are being sent to the enemy, necessity, as we have elsewhere said, 
will give me a right to intercept such goods, but with the obligation 
to make restitution, unless another cause arises. 

If, now, the enforcement of my right shall be hindered by the 
supplying of these things, and if he who supplied them has been in 
a position to know this (for example, in case I should be holding 
a town under siege or keeping ports under blockade, and a surrender 
or the conclusion of peace should already be in anticipation), then he 
will be liable to me for injury culpably inflicted, just as one who 
releases a debtor from prison or secures his escape, to my detriment. 
As in the case of the infliction of an injury, his goods may be seized, 
and ownership over them may be sought, for the purpose of recovering 
damages. 



Designatedby the Athenians anopprjra ; that is, ' thingsof which theexport is forbidden',rope, 
water-skins, timber, wax, and pitch. See the Scholiast on Aristophanes' Clouds [rather Frogs, line 365], 
and Knighls [line 282]. 

1 See Paruta, Book VII. 



Chap. 1] Rules regarding what is Permissible in War 603 

If he wlio furnishes supplies has not yet caused me injury, but 
has wished to do so, I shall have the right, through the retention of Syivester, 
his goods, to oblige him to give security for the future, by means of ^ t f tutio 
hostages, by pledges, or in some other way. pt. m, 

If, moreover, the injustice of my enemy toward me is palpably I2, 
evident and the one who furnishes supplies to him strengthens him 
in a very wicked war, in that case the latter will be responsible for 
the injury, not only by civil law but also by criminal law, just as 
one would be who should deliver an obviously guilty party from 
a judge who is about to inflict punishment. On this ground it will 
be permissible to pass upon the furnisher of supplies a sentence which 
suits his crime, in accordance with what we have said regarding 
punishments ; within the limits there indicated he may even be 
despoiled. 

4. For the reasons which have been stated, those who engage 
in war usually address public proclamations x to other peoples, with 

1 See the examples in the joint war against the Egyptians, Saracens, and others ; Decretals, I. xxxvi. 
n ; V. vi. 11 ; Extravagantes, viii. un. ; Extravagantes Communes, V. ii. i. 

There has been published in Italian a book called Consolato del Mare, in which have been collected 
the edicts of the emperors of Greece and Germany, and of the kings of France, Spain, Syria, and Cyprus ; 
also those of the Balearic Isles, the Venetians, and the Genoese. In title cclxxiv of that book questions 
of the kind under consideration are discussed, and the following principles are stated : 

If both the ship and the cargo belong to the enemy, the case is clear that they become the property 
of those who take them ; if, however, the ship belongs to those who are at peace, but the cargo to the 
enemy, the belligerents may force the ship to convey the cargo to some poit belonging to them, upon 
condition, however, of paying the cost of the voyage to the owner of the vessel. On the other hand, 
if the ship belongs to the enemy, but the cargo to others, the latter must bargain for the price of the 
vessel ; or, if the shippers do not wish to bargain, they must be compelled to go with the ship to some 
port belonging to the side of the captor, and to pay to the captor the price due for the use of the vessel. 

In Holland, in the year 1438, when the Dutch were at war with Liibeck and other cities on the 
Baltic and the Elbe, in a full meeting of the Senate it was decided that merchandise clearly belonging 
to others, even if it were found in vessels of enemies, did not form part of the booty ; and since then 
this has been recognized as the law there. This was also the view of the king of Denmark, when, in 
1597, he sent an embassy to the Dutch and their allies to claim for his subjects freedom of navigation 
and of carrying merchandise to Spain, with which the Dutch were waging a very bitter war. 

In France there has always been granted to those at peace freedom to carry on commerce, even 
with those who were enemies of the French. So indiscriminately has such freedom been taken advantage 
of that the enemy have often concealed their property under the names of others, as appears from 
an edict of the year 1543, chap. xlii, which has been carried over into an edict of the year 1584, and 
subsequent edicts. In these edicts it is expressly provided that it is permissible for those on friendly 
terms with the French to carry on commerce in time of war, provided that this is done in their own 
ships, and by their own people, ships, and cargoes ; it is permissible to carry their goods wherever 
they may wish, provided that these goods shall not be material serviceable in war, by means of which 
they wished to help the cause of the enemy ; in case material serviceable f or war should be transported, 
the French are permitted to take such material for themselves, paying a fair price for it. Here we 
must note two things ; by these [438] laws material of war did not become legitimate spoil, and 
innocent merchandise was much farther removed from the same danger. 

I should not deny that the northern nations have at times made use of another right, but in 
different ways, and having in view rather a temporary advantage than the maintenance of permanent 
justice. For when, making a pretext of their own wars, the English interfered with the commerce of 
the Danes, for this cause war arose between the peoples with the result that the Danes imposed tribute 
upon the English. Although the cause of the payment was changed, the name of it, Danegeld, remained 
until the time of William [the Conqueror], who founded the dynasty now ruling in England ; this is 
recorded by the very reliable De Thou, in his history of the year 1589 [XCVI. xv]. 

Again, Elizabeth, the wisest queen of England, in the year 1575, sent Sir William Winter and Robert 
Beal, Secretary of the Royal Council, to Holland in order to make it plain that the English could not 
suffer the Dutch, in the very midst of Holland's war with Spain, to detain English ships which had 



604 On the Law of War and Peace [Booklll 

the object of making clear both the justice of their cause and the 
probable hope of enforcing their right. 

5. In this inquiry we have referred back to the law of nature 
for the reason [427] that in historical narratives we have been 



sailed for Spanish ports. This is reported by Van Reyd for the year 1575 in his Dutch History, and 
by the Englishman Camden for the following year. However, when the English had themselves 
become enemies of the Spaniards and were interfering with the exercise of the right of navigation to 
Spain on the part of German cities, from the controversial writings of both peoples, which deserve to 
be read for an understanding of this controversy, it appears that the English had availed themselves 
of such interference without any clear right. It is to be noted that the English themselves in their 
writings admit this, when they adduce as the two chief points in support of their case that the things 
which were being carried by the Germans to Spain were material for war, and that previous treaties had 
forbidden such transportation. 

Such treaties were afterward made by the Dutch and their allies with Liibeck and its allies in 
1613, providing that neither the one party nor the other should permit subjects of the enemy to trade 
within their territory, or aid the enemy with money, soldiers, ships, or provisions. Later, in 1627, it 
was agreed between the kings of Sweden and Denmark that the king of Denmark should prevent all 
commerce with the people of Danzig, who were enemies of Sweden, and should not permit any mer- 
chandise to pass through the Cimbrian Strait [Baltic Sound] to the other enemies of Sweden ; for these 
services the king of Denmark stipulated certain advantages for himself. 

These, however, are special agreements, from which no inference can be drawn which would be 
binding upon all. This was in fact said also by the Germans in their writings, that not all merchandise 
was excluded by the treaties in question but only such merchandise as had been imported into England 
or manufactured there. The Germans, nevertheless, were not the only ones who opposed the English 
when the latter forbade commerce with their enemy. Even Poland sent an embassy and complained 
that the law of nations was being infringed upon when, because of the war between England and 
Spain, the Poles were deprived of the freedom of commercial relations with the Spaniards ; this is 
related under the year 1597 by Camden and Van Reyd, whom we have cited already. 

Moreover, after the Treaty of Vervins had been made with Spain, while Elizabeth, queen of England, 
Temained at war, the French refused to accede to the request of the English that the English should 
be allowed to search French ships that were sailing to Spain, in order that munitions of war might 
not be secretly conveyed therein ; the reason alleged was that this was seeking a pretext for plundering 
and disturbing commerce. In the treaty which the English made with the Dutch and their allies in 
1625, an agreement was reached that other nations, to whose interest it was that the greatness of 
Spain should be diminished, should be invited voluntarily to forbid commerce with the Spaniards ; 
if, nevertheless, the nations should not do this of their own accord, it was decided that yessels should 
be searched to see [439] if they carried any war material, but that otherwise neither the ships nor their 
cargoes should be detained, and that damage should not be done on this pretext to those who remained 
at peace. 

In the same year it happened that certain men sailed from Hamburg for Spain in a ship laden 
chiefly with military stores ; these stores were seized by the English, but the value of the rest of the 
merchandise was paid. The French, however, when French ships sailing for Spain were confiscated 
by the English, made it plain that they would not permit such procedure. 

We have, therefore, well stated the case in saying that public proclamations are required. The 
English themselves came to hold the same opinion. An example of such a proclamation made by 
them is given by Camden under the years 1591 and 1598. However, such proclamations have not 
always been obeyed, and distinctions have been made between times, causes, and places. In 1458, 
in fact, the city of Lubeck decided that it would not obey the proclamation made by the city of Danzig, 
forbidding them to carry on trade with Malmo and Memel, then at war with Danzig. Similarly the 
Dutch in 1551 refused to obey when Liibeck notified them that they should refrain from commerce 
with the Danes, who were then their enemies. 

In 1522, when there was war between the Swedes and the Danes, the king of Denmark requested 
the Hanseatic cities not to carry on commerce with the Swedes. Some of the cities, being in need of 
his friendship, complied, but the others did not. When war was raging between Sweden and the king 
of Poland, the Dutch never suffered themselves to be prohibited from commerce with one or the other 
nation. The Dutch, moreover, always restored to France the French ships which on their way to or 
from Spain were intercepted by Dutch vessels, Holland and Spain being at war. See the speech of 
Louis Servin, one time royal advocate, delivered in 1592 in the case of citizens of Hamburg. 

But the same Dutch did not permit merchandise to be brought by the English into Dunkirk, off 
which they kept a fleet : just so the city of Danzig, in 1455, notified the Dutch not to carry anything into 
the city of Koenigsberg, as Gaspar Schutz narrates in his Prussian History. Add Cabedo, Decisiones, 
xlvii. 2, and Seraphinus de Freitas in his book On the Just Asialic Empire of the Portuguese, where he 
cites various others. 



Chap. 1] Rules regarding what is Permissible in War 



605 



unable to find anything established by the volitional law of nations x 
to cover such cases. The Carthaginians sometimes captured Romans 
who had brought supplies to their enemies ; and they surrendered 
such persons to the Romans who demanded them. When Demetrius 
was occupying Attica with an army, and had already taken the 
near-by towns of Eleusis and Rhamnus and was intending to starve 
Athens into surrender, he hanged both the master and the pilot 2 
of a ship that attempted to carry in grain ; having in this way deterred 
others he made himself master of the city. 



Plutarch, 
Demetrius 
[xxxiii = 
p. 904 E]. 



VI. Whether it is permissible to use a ruse in war 

1. So far as the manner of conducting operations is concerned, 
violence and frightfulness are particularly suited to wars. The 
question is often raised, however, whether one may resort to ruses 
also. Homer, at any rate, said that one must harm his foe 

By ruse or violence, by open ways or hidden. 
In Pindar we find : 

And every means must be employed 
To bring the foeman low. 

In Virgil there is also this : 

Whether craft or valour, who would ask in war ? 

Soon there follows, 

Ripheus, who among the Trojans was the one most just, 
And most observant of the right. 

We read that Solon, who had a famous reputation for wisdom, 
sought to follow this type. Silius [Italicus], narrating the exploits of 
Fabius Maximus, says : 

Deceit henceforth on valour's side is placed. 

2. In Homer Ulysses, the typical man of wisdom, is at all times 
full of wiles against the enemy ; whence Lucian deduced the rule 
that those who deceive the foe deserve praise. Xenophon asserted 
that in war nothing is more useful than deceptions. In Thucydides 
Brasidas says that the renown won by the stratagems of war 3 is 

1 The learned Jan de Mers has much on this topic in his History of Denmark, I and II. There you 
will see that Liibeck and the Emperor are for commercial intercourse, and the Danes against it. See 
also Krantz, Vandalica, XIV [XIV. xxix] ; De Thou, on the aforementioned year 1589, Histories, XCVI 
[XCVI. xv] ; and Camden, besides the places previously cited, on the years 1589 and 1595, where the 
dispute between the English and the Germans, who are called Hanseatics, is discussed. 

2 Not very different is the incident related of Pompey by Plutarch in his History ofthe Mithridatic 
War [Life of Pompey, xxxix = p. 639 e] : ' He placed guards at the Bosphorus to watch for any traders 
who might sail in ; for those who were caught the penalty was death.' 

3 So says Virgil also, Aeneid, XI [XI. 515], and Sallust, who is cited by Servius. 



[Cf. Ho- 

mer, 

Odyssey, 

I. 296 ; 
Stobaeus, 
liv. 46.] 
[Isthmaean 
Hymns, 
iii. 69.] 

[A eneid, 

II. 390.] 



Lucian, 

Philo- 

pseudes 

[begin- 

ning].. 

Xen., 

Training 

of Cyrus, 

I[vi.29f.]; 

and On 

Horseman- 

ship [The 

Cavalry 

Com- 

mander, 

V.9]. 



6o6 



On the Law of War and Peace 



[Book III 



Thuc, 
V[ix]. 
Plutarch, 
Apolh. 

[=P- 
209 b]. 
Polybius, 
IX [xii]. 
V [100]. 
Plutarch, 
Marcellus 
[xxii=p. 
311 B]. 
[Lysander, 
vii=p. 
437 a.] 
[Philo- 

xiii=p. 
363 e-] 



[xvn. 

v. 6.] 



Dig. IV. 
iii. 1. 3- 

XLIX.xv. 
26. 



On Joshua, 
qu. x [On 
Hepta- 

Uuch, VI. 

x]. 

Onthe 

Priest- 

hood, 

I [viii]. 



particularly conspicuous ; and in Plutarch Agesilaus declares that 
to deceive an enemy is both just and permissible. 

Polybius thinks that what is accomplished by main force in 
war is to be considered of less importance than what is done by 
taking advantage of opportunities and by the use of deception. 
Hence Silius represents Corvinus as saying : 

War must be waged with guile ; x force brings less fame to the leader. 

Similar, according to Plutarch, was the view even of the stern Spartans: 
he observes that a larger victim was sacrificed by the one who had 
gained a victory through a ruse than by him who had won by open 
fighting. The same writer thinks highly of Lysander 2 for ' varying 
with ruses most of the operations of war '. Plutarch counts it among 
the merits of Philopoemen that, having been trained in the Cretan 
system, he combined the straightforward and honourable method of 
fighting with craft and ruses. It is a saying of Ammianus that 
6 All successful issues of war are to be praised without distinction of 
valour or guile \ 

3. The Roman jurists call it a good ruse ' whenever any one lays 
a plot against the enemy ' ; and again, they say that it makes no differ- 
ence whether any one escapes from the power of the enemy by force 
or by trickery. This is ' deception which cannot be censured, such 
as that of a general ', as Eustathius notes in his commentary on the 
fifteenth book of the Iliad. Among the theologians, Augustine 
declares : ' When one undertakes a righteous war, it makes no 
difference, [428 ] in respect to justness, whether he fights openly 
or by ambuscades.' Chrysostom says that generals who have won 
a victory by a ruse receive the highest praise. 

4. However, there is no lack of opinions which seem to advocate 
the opposite view, and some of these we shall present below. The 
final conclusion will depend upon the answer to the question whether 
deceit belongs to the class of things that are always evil, in regard to 
which the saying is true that one must not do evil that good may 
come ; or whether it is in the category of things which from their very 
nature are not at all times vicious but which may even happen to be 
good. 



There is a similar saying of Mohammed, * el-harbu hud'atun', [440] that is, ' battles require 
deceit'. According to Virgil [Aeneid, XII. 336], in the following of Mars are : 

Wrath and ambuscades. 
Thereon Servius comments : ' He shows that he is accompanied not only by valour, but also by 
stratagems.' 

* 1'lutarch compares him to Sulla, in whose soul Carbo used to say there were a lion and a fox 
[Sulla, xxviii = p. 469 E]. 



Chap. 1] Rules regarding what is Permissible in War 



607 



VII. In a negative action, deceit is not in itself unpermissible 

It must be observed, then, that deceit is of one sort in a negative 
action, of another sort in a positive action. The word deceit I extend, 
on the authority of Labeo, even to those things which occur in a 
negative action ; he classes it as deceit, but not harmful deceit, when 
any one ' protects his own or another's possessions through dissimula- 
tion \ It cannot be doubted that Cicero spoke too sweepingly when he 
said : ' Pretence and dissimulation must be removed from every 
phase of life.' For since you are not required to reveal to others all 
that you know or desire, it follows that it is right to dissimulate, 
that is to conceal and hide some things from some persons. ' One 
may ', said Augustine, 1 ' conceal the truth wisely, by the use of 
dissimulation in some degree '. Cicero himself in more than one 
place admits that such dissimulation is absolutely necessary and 
unavoidable, 2 especially for those to whom the care of the state is 
entrusted. 

The narrative of Jeremiah (Jeremiah, chap. xxxviii) ofTers 
a notable example touching this point. The prophet had been 
questioned by the king as to the outcome of the siege, but in the 
presence of the princes, at the king's request, he wisely concealed 
that fact, assigning another and yet not untrue reason for the confer- 
ence. With this, again, we may class the action of Abraham 3 in 
concealing his marriage and calling Sarah his sister, that is, according 
to the usage of the time, a near relative. 

VIII. Deceit in a positive action falls under two heads : deceit 
exhibited in actions not limited in significance, and that exhibited 
in actions the significance of which is, as it were, Jixed by agree- 
ment ; it is shown that deceit of the former sort is permissible 

1. Deceit which consists in a positive action, if it is exhibited 
in acts, is called pretence ; if in words, falsehood. Some persons 
establish this distinction between the two terms, because they say 
that words are naturally the signs of thoughts, while acts are not. 
But the contrary is true, that words by their very nature and apart 
from the human will have no significance, unless perchance a word 
is confused and ' inarticulate ', such as is uttered by a person in grief, 
when it comes rather under the term act than speech. 

If now the assertion is made that the nature of man possesses 



Against 
Lying, x ; 
Thomas, 
II. ii, qu. 
40, art. 3, 
ans. to 
obj., and 
qu. 71, 
art. 7 ; 
Sylvester, 
word 
bellum, pt. 

I, no. 9. 
Cicero, 
For Milo 
[xxiv. 65]; 
Letters, 
VII. ix 
[X. viii. 
4]; For 
Gn. Plan- 
cius [vi. 
16]. 

Genesis, 
xx ; 
Thomas, 

II. ii, qu. 
110, art. 3, 
ans. to 
obj. 



1 Also on Psalm v, verse ' Thou wilt destroy all ' : ' It is one thing to lie, and another to conceal 
the truth.' This is cited in the Decretum, II. xxiii. 2 [II. xxii. 2. 14]. 

2 See Chrysostom, On the Priesthood, I [I. viii. end]. 

3 ' He wished the truth to be concealed, but not to utter a lie ' : Augustine, On Genesis, qu. xx 
[On Heptateuch, I. xxvi], quoted by Gratian, in the aforementioned Decretum, II. xxii. 3 [II. xxii. 2. 22]. 

1569.27 T t 






608 On the Law of War and Peace [Booklll 

superioritv over that of other living creatures in this, that it can convey 
to others the ideas of the mind and that words were invented for this 
purpose, that is true. But it must be added that such conveying of 
thought is accomplished not by means of words alone but also by 
signs, 1 as among dumb persons, whether these signs naturally have 
something in common with the thing signified or whether they 
po> lificance merely by agreement. 

ilar to these signs are those characters which, as Paul the 
juri J do not express words formed by the tongue but ob- 

jects themselves, either from some resemblance, as in the case of 
hieroglvphic signs, or by mere arbitrary convention, as among the 
Chinese. 

2. At this point then we must introduce another distinction, 
such as we employed to remove the ambiguity in the term law of 
nations. For we said that the term law of nations includes both what 
is approved by separate nations without mutual obligation and what 
contains a mutual obligation in itself. Words, then, and signs, and 
the written characters we have mentioned, were invented as a means 

on inur> of expression under a mutual obligation ; as Aristotle called it, 
1 by convention \ This is not the case with other things. Hence 
it comes about that we may avail ourselves of other things, even if we 
foresee that another person will derive therefrom a false impression. 3 
[429] I am speaking of what is intrinsic, not of what is incidental. 
And so we must give an example, in which no harm follows as a 
consequence, 4 or in which the harm itself, without consideration of 
the deceit, is permissible. 

Luiu, 3. An example of the former case is found in Christ, who in 

xxiv. 28. t h e presence of His companions on the way to Emmaus ' made as 
though He would ' go further, that is, gave the impression of intending 
to go further ; unless we prefer truly to believe that He wished to 
go further, on condition, nevertheless, that He should not be detained 
by a great effort. Thus God is said to will many things which do 

Mmk, vi. not come to pass, and in another place Christ is said to have intended 
to pass by the Apostles who were in a ship, that is had He not been 
urgently entreated to embark. 

Another example may be found in Paul's circumcision of 
Timothy, when he was weli aware that the Jews would interpret this 
as though the injunction of circumcision, which had in fact already 

1 Pliny, on the nation of the Ethiopians, [Nalural History,} VI. xxx, says : * Some of them use 

iings of the head and movements of the limbs instead of speech.' See Decretals, IV. i. 25. 

', he says, 4 bound by the form of the letters, but by the speech vvhich the letters 
exnress, in so far as it is agreed that what is indicated by the writing has not less force than what is 
indicated by words formed bv the tongue.' In a truly philosophic spirit has he said ' it is agreed', 
in OTder to show that these things have force * by convention' (U awdriK^). 

See Augustine, On Christian Doctrim, II. xxiv [II. xxxiv]. 

4 As in the deed of Michal, 1 Samuel, xix. 16. 



3 



Chap. 1] Rules regarding what is Permissible in War 



609 



been done away with, was still binding upon the children of Israel, 
and as though Paul and Timothy themselves thought so. However, 
Paul did not have this in view, but merely sought to obtain for himself 
and Timothy the opportunity of associating with the Jews on more 
intimate terms. After the removal of the divine law circumcision 
no longer implied such an obligation by agreement ; and the evil 
arising f rom the error, which followed f or the time being, and was later 
to be corrected, was not of so great importance as the good which 
Paul sought, that is the introduction of the truth of the Gospel. 

This sort of pretence the Greek fathers often call c manage- 
ment \ x In regard to it there is a notable opinion of Clement of 
Alexandria, who in a discussion of the good man speaks thus : ' For the 
benefit of his neighbour he will do things which otherwise he would 
not do of his own accord and original purpose.' Of this nature was the 
act of the Romans who threw bread from the Capitol into the posts of 
the enemy that they might not be believed to be distressed by famine. 

4. An example illustrating the latter case is found in a pre- 
tended flight, such as Joshua ordered his men to make so as to take 
Ai by storm, and such as other commanders have frequently ordered. 
For in this instance we regard the injury which follows as legitimate 
according to the justice of war. Moreover, flight itself has no signifi- 
cance by agreement, although an enemy may interpret it as a sign of 
fear ; such interpretation the other party is not obliged to guard 
against in his use of his freedom to go hither and thither, more or 
less rapidly, and with this or that gesture or outward appearance. 
In the same category we may class the actions of those of whom we 
read that they made use of the weapons, standards, uniforms, and 
tents of their enemies. 

5. All these things are in fact of such a sort that they may be 
employed by any one at his discretion, even contrary to custom ; for 
the custom itself was introduced by the choice of individuals, not as 
it were by universal consent, and such a custom constrains no one. 



[Stromata, 
VII. ix.] 



Livy, V 

[xlviii. 4]. 



Joshua, 
viii ; 

Sylvester, 
word bel- 
lum, pt. i, 
no. 9. 



IX. The difficulty of the inquiry in resfiect to the second sort of deceit 
is indicated 

1. Of greater difficulty is the discussion with respect to those 
types of deceit which, if I may so say, are in common use among men 
in commerce and in which falsehood in the true sense is found. 



1 For so this is to be called, and not d-rrnTT], that is, ' deceit', according to Chrysostom in the 
work previously cited, On the Prieslhood, I [I. ix]. 

The same author comments as follows On First Corinthians, iv. 6 [Homily XII, 1] : ' Here there 
was no deceit, but a sort of obedience and management.' Also, in his comment on ix. 20 [Homily 
XXII, iii] : ' For that he might correct those who were in truth such, he himself became such, not in 
truth being other than what he was, but pretending to be, doing such things as they did, but not with 
the same purpose.' With this we may associate the pretended madness of David. 

T t 2 



6io 



On the Law of War and Peace 



[Book III 






Creusa, in 
Stobaeus, 



>Menan- 
der, in 
Stobaeus, 
xii. i6a.] 

[Xicom. 
Ethics, 

IV. xiii.] 



[On Lying, 
i. i and 
xviii. 38.] 
Plato, Re- 
public, 1, 
II and V. 

Socratcs, 

morab.,lV. 

irch, 
Contrad. 
of Stoics 

: = p. 
1055. 

tilian, 
XII i [38]. 

VII. iii; 



II % 
IV. x 

Ethics, 



There are many injunctions against falsehood in Holy Writ. 
' A righteous man ', that is the good man, ' hateth lying ' (Proverbs, 
xiii. 5) ; ' Remove far from me falsehood and lies ' (Proverbs, xxx. 8) ; 
' Thou wilt destroy them that speak lies ' (Psalms, v. 6) ; ' Lie not 
one to another ' (Colossians, iii. 9). 

This point of view is rigidly maintained by Augustine ; and even 
among the philosophers and poets there are those who are seen to 
be in sympathy with it. Well known is this saying of Homer : 

To me as hateful as the jaws of Hell is he 
Whose mind thinks other than his tongue reveals. 



[430] Sophocles says : 



What is foreign to truth it is never fitting to utter. 

Yet, if the telling of truth will bring sure doom to another, 

Pardon to him must be granted who does that which is not fitting. 

Cleobulus has this line : 

Falsehood is hateful to him who in his heart is wise. 

totle said : ' Falsehood in itself is base and worthy of censure, 
but truth is noble and deserving of praise.' 

2. Nevertheless authority is not lacking in support of the 
opposite view also. In the first place in Holy Writ there are examples 
of men cited without a mark of censure ; * and, in the second place, 
there are the declarations of the early Christians, Origen, Clement, 
Tertullian, Lactantius, Chrysostom, Jerome, and Cassian, indeed of 
nearly all, as Augustine himself acknowledges. Although disagreeing 
with them, he nevertheless recognizes that it is ' a great problem ', 
' a discussion full of dark places ', ' a dispute in which the learned are at 
variance ', to use words that are all his own. 

3. Among the philosophers there stand openly on this side 
Socrates and his pupils Plato and Xenophon ; at times, Cicero ; 
if we may trust Plutarch and Quintilian, also the Stoics, who among 
the endowments of the wise man include ability to lie in the proper 
place and manner. In some places Aristotle too seems to agree with 
them, for his phrase ' in itself ', which we have quoted, may be inter- 
preted generally, that is, considering the thing without regard to 
attendant circumstances. The commentator upon Aristotle, 
Andronicus of Rhodes, thus speaks of the physician who lies to 
a sick man : ' He deceives indeed, but he is not a deceiver,' adding 
the reason : ' for his aim is not the deception of the sick man, but his 
cur< 

1 Irenaeus learned from the tnstniCtion "f U ancient presbyter, and taught that : ' We should 
not become accusers in thin^s which the Scriptures simply state, but do not censure.' The passage 
is in Book IV, chap. 1 [IV. xxxi]. 



Chap. 1] Rules regarding what is Permissible in War 611 

4. Quintilian, whom I have mentioned, in defending this 
same view says that there are many things which are made honourable 
or base, not so much by the nature of the facts as by their causes. 
Says Diphilus : 

The falsehood told for safety's sake, 

If I may judge, can cause no detriment. 

In Sophocles, w T hen Neoptolemus asks : 

Do you not think a lie is base ? 

Ulysses answers : 

If safety from the lie arise, I do not. 

Similar views may be cited from Pisander and Euripides. In 
Quintilian, again, I read : ' For to tell a lie is sometimes permissible 
even for the wise man.' Eustathius, Metropolitan of Thessalonica, 
commenting On the Odyssey, II, writes : ' The wise man will lie 
when occasion demands ' ; x and on this point he adduces evidence 
from Herodotus and Isocrates. 



[Philo> 
ctetes, 
108 f.] 



X. Not every use of an expression, which is knozvn to he taken in another 
sense, is unpermissible 

1. Perhaps we may fmd some way of reconciling such divergent 
views in a wider or more strict interpretation of the meaning of 
falsehood. 

Adopting the point of view of Gellius when he distinguishes 
between telling an untruth and lying, we do nct understand as 
a falsehood what an ignorant person happens to say ; 2 but we are 
concerned with that which is consciously uttered with a meaning 
that is at variance with the idea in the mind, whether in under- 
standing cr in an act of will. For ideas of the mind are what are 
primarily ' and immediately ' indicated by words and similar signs ; 
so he does not lie who says something untrue which he believes to be 
true, but he lies who says that which is indeed true but which he 
believes to be false. [431] Falsity of meaning, therefore, is that 
which we need to exemplify the general nature of falsehood. 

From this it follows that, when any term or phrase has ' several 
meanings ', that is, may be understood in more than one way, either 

1 On occasion, as Donatus says, On [Terence's] Brothers, IV. iii. [IV. iii. 18] : 'And some writers 
on moral obligations think that it is right for one to deceive on occasion.' Cicero, For Quintus Ligarius 
[v. 16], calls such a falsehood ' an honourable and merciful lie'. 

2 Nothing except a guilty mind makes a guilty tongue', and ' No one is to be considered a liar 
who has said something false which he thinks to be true, because, so far as it is in his power, he himself 
does not deceive, but is deceived'. These are the words of Augustine, in his On the Words of the 
Apostle, XXVIII [ = Sermones de Scripluris, clxxx. 2], and Enchiridium, xxii [xviii], cited by Gratian, 
in the Decreium, II. xxii. 1 [II. xxii. 2. 3 and 4]. 



6l2 



On the Law of War and Peace 



[Book III 



John, 
xi. ii. 



John, ii. 
20-1. 

Luke, 
xxii. 30. 

Matthew, 
xx vi. 25 
[xxvi. 29]. 

Acts, i. 6. 



[Matthew, 
xiii. 13.] 



Tacitus, 
Annak, 
VI [XI. 
xxxivl. 



from common usage, or the practice of an art, or some figure of 
speech easily understood, then, if the idea in mind fits one of these 
meanings, it is not held to be a lie, even if it is thought that he who 
hears it will understand it in another way. 1 

2. It is indeed true that the rash employment of such a mode 
of speech is not to be approved. It may nevertheless be justified 
by incidental causes, as, for instance, if thereby aid is rendered in the 
instruction of one who has been entrusted to our care, or in avoiding 
an unfair question. 

Christ Himself gave an example of the former sort, when He 
said : ' Lazarus our friend is fallen asleep ', which the Apostles 
understood as though it were said of the sleep of the living. Again, 
what He had said about rebuilding the Temple, meaning it in regard 
to His own body, He knew the Jews took with reference to the actual 
Temple. Similarly when He promised to the Apostles twelve 
exalted seats next to the King, like judges of the tribes among the 
Jews, and elsewhere that they should drink of a new wine in His 
Father's kingdom, He seems to have been fully aware that they 
took this to refer to none other than some kingdom in this life, with 
the expectation of which they were filled until the very moment 
when Christ was about to ascend up into heaven. On another occa- 
sion also He spoke to the people through the indirectness of parables, 
that those who heard Him might not understand, unless, that is, 
they should bring thereto such earnestness of mind and readiness to 
be taught as were required. 

An example of the latter use may be given from profane history 
in the case of Lucius Vitellius, whom Narcissus pressed to explain 
his ambiguities and reveal the truth fully, but whom he could not 
force to refrain from giving replies that were dubious and capable 
of varied interpretation. 2 Here applies a saying of the Jews : 3 
1 If any one knows how to use ambiguous language, it is well : but if 
not, let him remain silent.' 

3. On the other hand, a case may arise when it is not only not 
praiseworthy but even wicked to employ such a mode of speech ; as 



1 Just as [44 1 ] Abraham spoke deceptively to his servants; 011 this incident Ambrose [On 
Abraham, I. viii. 71] passes judgement with approval. He is followed by Gratian, after the afore- 
mentioned Decretum, II. xxii. 2. 20. 

* The same Tacitus, Histories, III [III. iii], says : ' He spoke obscurely, with the intention of 
interpreting his words in such a way as might be advantageous.' Also [III. lii] : ' Having so phrased 
his statements that, according to the outcome, he might repudiate connexion with what was unfavour- 
able, or assume cTedit for what was successful.' 

To the Jews belongs the following also : ' It is permissible to speak ambiguously for 
the sake of a good thing.' This is cited by the erudite Manasses Ben-Israel in his Conciliator, 
qu. xxxvii. 

rvsostom, On the Prieslhood, I [I. ix. end], says : ' He is rightly called a deceiver who avails 
himself of such a means unjustly, but not he who does so for a beneficial purpose.' 



Chap. 1] Rules regarding what is Permissible in War 613 

when the glory of God, 1 or the love due to our neighbour, 2 or rever- 
ence toward a superior, or the nature of the thing in question requires 
that everything which is thought in the mind shall be completely 
revealed. Just so in the case of contracts, we said that that must [ii. xii. 1 
be made known which the nature of the contract is understood to 
demand ; and in this sense we may not inaptly interpret the rule [On 
of Cicero, c All falsehood must be removed from matters of contract ', nif*xv. 
which is taken from the ancient Athenian law prohibiting ' the 6i.j 
uttering of falsehoods in the market-place '. In these passages D ^ m - 



apparently the word falsehood receives so broad a meaning that it Agaimi 
covers even an obscure statement. But this, strictly speaking, we f^* 
have already excluded from the idea of a falsehood. 459.'] 



XI. The character of falsehood, in so far as it is unfiermissible, consists 
in its conflict with the right of another ; this is explained 

1. In order to exemplify the general idea of falsehood, it is 
necessary that what is spoken, or written, or indicated by signs 
or gestures, cannot be understood otherwise than in a sense which 
differs from the thought of him who uses the means of expression. 

Upon this broader signification, however, a stricter meaning of 
falsehood must be imposed, carrying some characteristic distinction. 
This distinction, if we regard the matter aright, at least according 
to the common view of nations, can be described, we think, as nothing 
else than a conflict with the existing and continuing right of him to 
whom the speech or sign is addressed ; for it is sufnciently clear that 
no one lies to himself, however false his statement may be. 

By right in this connexion I do not mean every right without 
relation to the matter in question, but that which is peculiar [432] 
to it and connected with it. Now that right is nothing else than the 
liberty of judgement 3 which, as if by some tacit agreement, men 
who speak are understood to owe to those with whom they converse. 
For this is merely that mutual obligation which men had willed to 
introduce at the time when they determined to make use of speech 

1 Philo, Onthe Life of Moses [III. xxi] : ' I am speaking of things which concern the glory of God, 
in regard to which even one who is otherwise of a lying disposition must speak the truth. For truth 
is the companion of God.' Augustine, Letters, viii [xxviii. 3] : * It is one question, whether a good man 
should ever lie ; and another question, whether a writer of the Holy Scriptures should lie.' See what 
follows below in III. i. 15. 

2 Aeschylus, Prometheus Bound [lines 609 ff .] : 

Openly shall I say what you seek to hear, 
In simple speech, and not in dubious phrase, 
But as is right to hold discourse with friends. 

3 Hence the Hebrews say that he who takes away the means of knowing ' steals the heart ' ; 
Genesis, xxxi. 20, 26-7, with the commentary of Onkelos thereon, and the Septuagint. Also Rabbi David 
in his Book ofRoots, Rabbi Salomon in his commentary, and Aben-Ezra. 



614 



0)i thc Law of War and Peace 



[Book III 



Republic, 
331 d). 



[Enchiri- 
dium, 

OnDuiUs, 

I[x. 3 x]. 



and similar signs ; for without such an obligation the invention of 
speech would have been void of result. 

2. We require, moreover, that this right be valid and con- 
tinuing at the time the statement is made ; for it may happen that 
the right has indeed existed, but has been taken away, or will be 
annulled by another right which supervenes, just as a debt is can- 
celled by an acceptance or by the cessation of the condition. Then, 
further, it is required that the right which is infringed belong to 
him with whom we converse, and not to another, just as in the case 
of contracts also injustice arises only from the infringement of a right 
of the contracting parties. 

Perhaps you would do well to recall here that Plato, following 
Simonides, refers truth-speaking to justice ; that falsehood, at least 
the type of falsehood which is forbidden, is often described in Holy 
Writ as bearing false witness or speaking against one's neighbour ; 
and that Augustine himself in determining the nature of falsehood 
regards the will to deceive * as essential. Cicero, too, wishes that 
inquiry in regard to speaking the truth be referred to the fundamental 
principles of justice. 

3. Moreover, the right of which we have spoken may be 
abrogated by the express consent of him with whom we are dealing, 
as when one says that he will speak falsely and the other permits it. 
In like manner it may be cancelled by tacit consent, or consent 
assumed on reasonable grounds, or by the opposition of another right 
which, in the common judgement of all men, is much more cogent. 

The right understanding of these points will supply to us many 
inferences, which will be of no small help in reconciling the differences 
in the views which have been cited above. 



Locretius 

[1.939]. 

[InstiiuUs 

/Ora.Sry. 

380 



XII. The view is maintained that it is permissible to say what is false 
before infants and insane persons 

The first inference is that even ii something which has a false 
significance is said to an infant or insane person no blame for false- 
hood attaches thereto. For it seems to be permitted by the common 
opinion of mankind that 

The unsuspecting age of childhood may be mocked. 

Quintilian, speaking of boys, said : ' For their profit we employ 
many fictions.' The reason is by no means far to seek ; since infants 
and insane persons do not have liberty of judgement, it is impossible 
for wrong to be done them in respect to such liberty. 



1 Lactantius, Institulcs, VI. xviii : ' Let him never lie in order to deceive or do harm.' 



Chap. 1] Rnles regarding what is Permissible in War 



615 



XIII. It is permissible to say zuhat is false when he to whom the 
conversation is not addressed is deceived, and when it would be 
permissible to deceive him if not sharing in it 

1. The second inference is that, so long as the person to whom 
the talk is addressed is not deceived, if a third party draws a false 
impression therefrom there is no falsehood. 

There is no falsehood in relation to him to whom the utterance 
is directed because his liberty remains unimpaired. His case is like 
that of persons to whom a fable is told when they are aware of its 
character, or those to whom ngurative language is used in l irony ', 
or in c hyperbole ', a figure which, as Seneca says, reaches the truth 
by means of falsehood, 1 while Quintilian calls it a lying exaggeration. 
There is no falsehood, again, in respect to him who chances to hear 
what is said ; the conversation is not being held with him, con- 
sequently there is no obligation toward him. Indeed if he forms 
for himself an opinion from what is said not to him, but to another, 
he has something which he can credit to himself, not to another. 
In nne, if, so far as he is concerned, we wish to form a correct judge- 
ment, the conversation is not a conversation, but something that 
may mean anything at all. 

2. Cato the censor therefore committed no wrong in falsely 
promising aid to his allies, nor did Flaccus, who said to others that 
a city of the enemy had been stormed by Aemilius, although in both 
cases the enemy was deceived. A similar ruse is told of Agesilaus by 
Plutarch. Nothing in fact was said to the enemy ; the harm, moreover, 
which [433] followed was something foreign to the statement, and 
of itself not unpermissible to desire or to accomplish. 

To this category Chrysostom and Jerome 2 refer PauPs speech, 
in which at Antioch he rebuked Peter for being too zealous a Jew. 
They think that Peter was well aware that this was not done in 
earnest ; at the same time the weakness of those present was humoured. 

XIV. It is permissible to say what is false when the conversation is 
directed to him who wishes to be deceived in this way 

1. The third inference is that, whenever it is certain that 
he to whom the conversation is addressed will not be annoyed at 
the infringement of his liberty in judging, or rather will be grateful 
therefor, because of some advantage which will follow, in this case 



On Bene- 
fits, VII. 
xxiii. 

[Inst. Or., 
VIII. vi. 
67.] 



Livy, 
XXXIV 

[xii]. 

Appian, 
Spanish 
Wars 
[xiii. 81]. 
[Agesilaus, 
xvii = 
p. 605 c.] 

[Chrysost. 
On Gal. t 
ii. 7-8 ; 
Jerome, 
Letters, 
cxvi. 10.] 
[Galatians, 
ii. 14.] 



1 ' He makes unbelievable assertions, in order to arrive at what is believable.' Seneca, in the same 
passage. 

2 Also Cyril, Against Julian, IX, near the end. Not very differently also Tertullian, Against 
Marcion, Books I and III [I. xx ; IV. iii]. 



6i6 



On the Law of War and Peace 



[Book III 



94.] 



[Stobaeus, 
xii. 13.] 
[Training 
of Cyrus, 
I. vi. 31.] 
[Stromata, 
VII. ix. 

53.] 

[Disserta- 
tions, xix. 
3.] 

Socrates, 
IV [Me- 
morabilia, 
IV.ii.17]. 
Livv, 
XXXIV 
[I. xxvii. 
8]. 

[Livy, II 
Ixiv. 6.] 



also a falsehood in the strict sense, that is a harmful falsehood, is not 
perpetrated ; just so a man does not commit theft who with the pre- 
sumed consent of the owner uses up some trifling thing in order that 
he may thereby secure for the owner a great advantage. 

In these matters which are so certain, a presumed wish is taken 
as one that is expressed. Besides, in such cases it is evident that no 
wrong is done to one who desires it. It seems, therefore, that he 
does not do wrong who comforts a sick friend by persuading him 
of what is not true, as Arria did by saying what was not true to Paetus 
after the death of their son ; the story is told in the Letters of Pliny. 1 
Similar is the case of the man who brings courage by a false report 
to one who is wavering in battle, so that, encouraged thereby, he 
wins victory and safety for himself, and is thus * beguiled but not 
betrayed ', as Lucretius says. 

2. Democritus says : c We must speak the truth, wherever that 
is the better course.' Xenophon writes : ' It is right to deceive our 
friends, if it is for their good.' Clement of Alexandria concedes c the 
use of lying as a curative measure '. Maximus of Tyre says : c A 
physician deceives a sick man, a general deceives his army, and a pilot 
the sailors ; and in such deception there is no wrong.' The reason is 
given by Proclus in commenting on Plato : ' For that which is good 
is better than the truth.' 

To this class of untruths belong the statement reported by 
Xenophon, 2 that the allies would presently arrive ; that of Tullus 
Hostilius, that the army from Alba was making a flank movement by 
his order ; what histories term the c salutary lie ' of the consul 
Quinctius, that the enemy were in flight on the other wing ; and 
similar incidents found in abundance in the writings of the historians. 
However, it is to be observed that in this sort of falsehood the infringe- 
ment upon the judgement is of less account because it is usually 
confined to the moment, and the truth is revealed a little later. 



XV. It is permissible to say what is false when the speaker makes use 
of a superior right over one subject to himself 

1. A fourth inference, akin to the foregoing, applies to the 
case when one who has a right that is superior to all the rights of 
another 3 makes use of this right either for his own or for the public 



1 III. xvi. 

* ' And when Agesilaus had come into Boeotia and had learned that Pisander had been beaten 
in a naval battle by Pharnabazus and Conon he gave orders that the opposite should be told to his 
troops ; and he came forth wearing a wreath, and he offered sacrifice as if in gratitude for a victory.' 
Plutarch, Azesilaus [xvii =p. 605 c]. 

In the Jliad, II [II. 73 f.], Agamemnon the leader of the Greeks says: 

But first I shall prove the Greeks with words, as my right is, 
And bid them swiftly to flee with their brazen ships 



Chap. 1] Rules regarding what is Permissible in War 617 

good. This especially Plato seems to have had in mind when he 
conceded the right of saying what is false to those having authority. 
Since the same author seems now to grant this privilege to physicians, 1 
and again to deny it to them, apparently we ought to make the 
distinction that in the former passage he means physicians publicly 
appointed to this responsibility, and in the latter those who privately 
claim it for themselves. Yet Plato also rightly recognizes that false- 
hood is not becoming to deity, although deity has a supreme right 
over men, because it is a mark of weakness to take refuge in such 
devices. 

2. An instance of blameless mendacity, of which even Philo 
approves, may perhaps be found in Joseph, 2 who, when ruling in the 
king's stead, accused his brothers first of being spies, and then of being 
thieves, pretending, but not really believing, that they were such. 
Another instance is that of Solomon, who gave an example of wisdom 
inspired by God, when to the women who were disputing over the 
child he uttered the words which indicated his purpose to slay it, 
although his real intent was the furthest possible from such a course, 
and his desire was to assign to the true mother her own ofTspring. 
[434] There is a saying of Quintilian : ' Sometimes the common 
good requires that even falsehoods should be upheld.' 



[On Jo- 

seph, 
xxviii.] 



XVI. It is perhaps permissible to say what is false when we are unable 
in any other way to save the life of an innocent person, or something 
else of equal importance 

A fifth inference may be applicable to cases where the life 
of an innocent person, or something else of equal importance, cannot 
be saved without falsehood, and another person can in no other way 
be diverted from the accomplishment of a wicked crime. 3 Such was 
the deed of Hypermnestra, who is often lauded for this reason : 

Nobly false * and for all time 
A maiden famed. 



1 [442] Chrysostom, in the aforementioned On the Priesthood, I [I. ix], adduces examples of 
physicians. 

2 ' When with pretended severity he accuses his brothers of espionage ', says Cassiodorus [Peter 
of Blois] in his On Friendship. 

* Augustine, On Psalm V [ 7], cited by Gratian, in Decretum, II. xxii. 2. 14, says: 'There are, 
however, two sorts of lies in which there is no great fault, yet which are not entirely free from fault. 
The one sort is told when we are joking, the other when we lie for the benefit of our neighbour. Now 
the first sort, which consists in a joke, is not so dangerous, because it does not deceive. For he to whom 
it is told knows that it has been told in jest. But the second sort of lie is still less dangerous, because 
it contains some element of kindness.' 

Tertullian, On Modesly [chap. xix], classes among the sins of daily occurrence, to which we are all 
subject, the necessity of lying. 

4 On this the Scholiast comments : ' Fittingly. For it is noble to lie for the sake of justice.' Of 
like tenor is what Chrysostom [On Penitence, VII. v] says of Rahab : ' fair falsehood, praise- 
worthy deception, not of one who breaks divine commands, but of one who is a guardian of the truth', 
or, as other manuscripts have it, ' guardian of true piety '. 



6i8 



On the Law of War and Peace 



[Book III 



Republic, 
II [xxi = 
382 c] 
Training 
of Cyrus, 

28], and 
SocraUs, 

morabilia, 

'tgr. 
ofAbr. 
[On the 
Cherubim, 

sostom, 
On the 
Prusthood, 

I Samuel, 
xi [10] ; 
I[2] 

Kings, vi. 
18 ff. 
[Fron- 
tinus, 
Strata- 
gems, II. 
iv. 9]. 

Or., 
XII. i. 

39]. 

Thomas, 
II. ii, qu. 
110, art. 
1 and 3 ; 
Covarru- 
vias, On 
Sext., I. 
xviii. 2, 
pt. 1, 

5no. 15; 
Soto, De 
lustitia, 
V, qu. 6, 

Toledo, 

IV. xx. ; 
ii; 
Lessius, 
Dc lusti- 
tia, Il.xlii, 
dub. 9. 



XVII. The authors zvho have judged that falsehood spoken in the 
presence of enemies is permissible 

1. The pnnciple which the learned generally lay down, that it 
is permissible to speak falsely to an enemy, goes beyond what we have 
just said. Accordingly, to the rule forbidding a lie the exception, 
unless against enemies, is added by Plato and Xenophon ; also by 
Philo among the Jews, and by Chrysostom among. the Christians. 1 
To this exception you would perhaps refer the lie of the men of 
Jabesh when under siege, as recorded in Holy Writ, and the similar 
deception on the part of the prophet Elisha ; 2 also that of Valerius 
Laevinus, who boasted that he had slain Pyrrhus. 

2. To the third, fourth, and fifth of the conclusions which we 
have stated, applies the passage of Eustratius, Metropolitan of 
Nicaea, On Nicomachean Ethics, Book VI [VI. ix] : 

He who gives good counsel does not necessarily speak the truth. It can in fact happen 
that he who plans aright makes falsehood itself a part of his plan, that he may lie inten- 
tionally, either to an enemy, in order to deceive him, or to a friend, to deliver the friend 
from evil ; historical narratives are full of instances of this sort. 

Quintilian says that, if a footpad must be deterred from killing 
a man, or if an enemy must be deceived to save the country, we shall 
find it necessary to praise in the wise man himself conduct that 
otherwise we should have to censure in slaves. 

3. These doctrines do not meet with the approval of the 
school of writers of recent times, since in almost all matters they have 
chosen to follow Augustine 3 alone of the teachers of antiquity. But 
the same school admits of unspoken interpretations, which are so 
repugnant to all practice that one may question whether it would 
not be more satisfactory to admit to certain persons the use of false- 
hoods in the cases we have mentioned, or in some of them (for I 
assume that nothing has been settled here), than so indiscriminately 
to exempt such interpretations from the definition of falsehood. 
Thus when they say ' I do not know ', it may be understood as ' I do 

In regard to the Egyptian midwives, Augustine [On Heptateuch, II, beginning] says : '0 great 
instinct of humanity, pious lie uttered to save life ! ' Jerome, On Ezekiel, xxvii [xxxviii] and On 
Isaiah, Ivi [lxvl, praises these same midwives and believes that rewards, even eternal rewards, have 
been given 10 them. AJso Ambrose, Letters, VI [V. 10], To Syagrtus, and Augustine himself, Against 
Lying, To Consenlius, chap. xv, varying, as often. 

Tostado denies that there is sin in this. Augustine, On Exodus, II [On Heplaieuch, II. i], and 
Thomas Aquinas, II. ii, qu. 110, art. 55, ans. to obj. 4, and Cajetan thereon, are doubtful. See, if 
you have the tirne, Erasmus, in his Praise of Folly, and the erudite Maes, On Joshua, ii. 5. 

1 He speaks thus : 4 If you shouid call to account the most eminent ^cncrals, you would find tliat 
most of th- have been won through deneption ; and yet such generali rcceive more prai^ 

than thosc 1 warfare.' 

* A similar act of the same Elisha is recorded in 2 Kings, viii. 10, according to the reading of the 
Mas' ;lowed by the Latin Vulgate version. 

' Augustine's later view in this matter has been opposed by the Abbot Rupert. 



Chap. 1] Rules regarding what is Permissible in War 619 

not know so as to tell you ' ; and when they say ' I have not ' it may 
be understood as ' so as to give you ' ; and other things of this sort 
which the common sense of mankind repudiates, and which, if 
admitted, will offer no obstacle to our saying that whoever affirms 
anything denies it himself, and whoever denies affirms. 

4. It is assuredly quite true that in general there is no word 
which may not have a doubtful meaning ; x for all words, in addition 
to the significance which is called that of the first notion, have 
another of a second notion, 2 and this significance varies in the different 
arts ; 3 moreover, words have diff erent meanings also in metaphor and 
other figures of speech. 

Again, I do not approve of the view of those who apply the 
term jokes to falsehoods which are uttered with a particularly serious 
expression and tone, as if they shrank from the word rather than 
the thing. 

XVIII. The use of falsehood is not to be extended to statements con- 
taining a promise 

We must, however, bear in mind that what we have said regarding 
falsehood is to be applied to assertions, and such indeed as injure no one 
but a public enemy, but not to promises. 4 For by a promise, as we have 
just begun to say, a new and particular right is conferred upon him 
to whom the promise is made. 

This holds true even among enemies, without any [435] ex- 
ception arising from the hostility existing at the time. It holds 
true not only in the case of promises actually expressed, but also 
in the case of those that are implied, as we shall show in discussing 
the demand for a parley when we come to the part that deals with 
the observing of good faith in warfare. 

XIX. The use of falsehood is not to be extended to oaths 

This also must be repeated from the portion of our foregoing 
discussion which dealt with the subject of oaths, that whether the 
oath is assertive or promissory it has the force to exclude all excep- 
tions which might be sought in the person of him with whom we are 
dealing. The reason is that an oath establishes a relation not only 

1 This view is supported by Chrysippus in Gellius, [Atlic Nights,] XI. xii. It is championed also 
by Seneca, On Benefits, II. xxxiv: ' There is a vast number of things without name which we do not 
designate by characteristic terms, but by convenient borrowed names.' 

2 Augustine, De Magistro [vii. 20] : ' We have learned of no symbol which, among the things that 
it signifies, does not signify itself also.' 

3 See what we have noted above, on III. i. 10. 

4 Agesilaus, and with him Plutarch [Agesilaus. ix =p. 600 D], make this distinction : [443] ' To 
violate sworn agreements is to despise the gods. Otherwise, to deceive the enemy with words is not 
only just but glorious,, and brings glory and satisfaction together with gain.' 



620 



On the Law of War and Peace 



[Book III 



with a man, but also with God, to whom we are bound by the oath, 
even if no right arises for the man. 

In the same place we have furthermore stated that in an oath 
we do not, as we do in other speech, admit that interpretations not 
wholly without warrant may be put upon words, in order to absolve 
us from falsehood ; but we do require that the truth be spoken 
with the meaning which a man listening is supposed to understand 
in perfect good faith. Obviously, then, we must abhor the impiety 
of those who did not hesitate to assert that it is proper to deceive 
men by oaths just as boys do by means of dice. 



XX. Nevertheless it is more noble, and more becoming to Christian 
simplicity, to refrain from falsehood even toward an enemy ; this 
view is illustrated by comparisons 

1. We know, too, that certain types of fraud, which we have 
said were naturally permitted, have been rejected by some peoples 
and persons. But this does not happen because they view such means 
of deception as unjust, but because of a remarkable loftiness of mind, 
and, in some cases, because of confidence in their strength. There 
is in Aelian a saying of Pythagoras, that in two things man comes 
very close to God, in speaking the truth at all times and in doing 
good to others ; and in Iamblichus veracity is called a guide to all 
good things, divine and human. For Aristotle ' the magnanimous 
man is a lover of free speech and of the truth '. For Plutarch ' to 
lie is worthy of a slave \ l 

Arrian says of Ptolemy : ' And for him, who was a king, it was 
more disgraceful to lie than for another.' In the same author, 
Alexander declares : ' Tbe king must speak nothing but the truth 
to his subjects.' Mamertinus says of Julian : ' In our emperor there 
is a marvellous agreement between mind and tongue. He knows 
that lying is not only a mark of a low and mean spirit, but also a 
slavish vice ; and in truth, since want or fear makes men liars, the 
emperor who lies is ignorant of the greatness of his fortune.' In 
Plutarch, praise is given to Aristides' ' character rooted in firm morality 
and tenacious of justice, not even resorting to falsehood in any kind 
of sport '. Of Epaminondas Probus says that he was ' so devoted to 
truth that he did not lie even in jest '. 

2. This point of view assuredly is all the more to be insisted 
on by Christians ; for not only is simplicity enjoined upon them 
(Mattbew, x. 16), but vain speaking is forbidden (Matthew, xii. 36) ; 

Philo, in the book That Every Virtuous Man is Free [xxi],says : ' Whence men are accustomed 
to style illiberal, and of a servile mmd, those who are two-faced and deceptive.' 



Chap. 1] Rules regarding what is Permissible in War 621 



and He is set for their example in whose mouth no guile was found. 
Lactantius says : ' And so the true and upright traveller will not 
quote that saying of Lucilius : 

I lie not to a man who is my friend and intimate. 

But he will think that he should not lie even to an enemy and a 
stranger ; nor will he ever consent that his tongue, the interpreter 
of his mind, shall disagree with his meaning and thought.' 

Of like opinion is Neoptolemus in the Philoctetus of Sophocles 
1 excelling in simplicity and nobleness ', as Dio of Prusa rightly 
observes, for to Ulysses, who urges him to practise deception, he thus 
replies : 

Child of Laertes, what plans with grief I hear 

With far more loathing would I carry out ; 

For to devise deceits I was not born, [436] nor he 

Of by-gone days, my sire, as men relate ; x 

But by main force, not wiles, the captive to bear off, 

Prepared am I. 

Euripides in the Rhesus says : 

Upon the foe a noble soul cannot inflict 
A guileful death. 

3. Thus Alexander declared that he would not steal a victory. 
Polybius relates that the Achaeans shrank from all deceit against the 
enemy, because they considered that the only sure victory which, 
if I may express his meaning in the words of Claudian, 

Conquers foes whose minds have been subdued. 

Such was the attitude of the Romans almost to the close of the second 
Punic War. Aelian records that ' The Romans know that they are 
brave, and that they have not overcome their foes by artifice . . . and 
trickery '. Hence when Perseus, king of Macedon, was deceived by 
hopes of peace, the elder senators declared that they did not recognize 
the methods of the Romans, that the ancestors of these never boasted 
that they had waged war more by craft than by courage ; that it 
had been the Roman method to wage war not by the ruses of the 
Carthaginians, nor by the subtlety of the Greeks, who would esteem it 



[Orations, 
lii = 
P. 552.] 
[Sopho- 
cles, 

Philocte- 
tes, 86 E.] 



[5io fj 



Alex. % 
xxxi= 

P. 683 D.] 

IX 

[XIII. iii." 

[On the 

Sixth Con- 

sulship of 

Honorius, 

249-] 

[Various 

History, 

XII. 

xxxiii.] 

[Livy, 

XLII. 

xlvii. 

4-8.] 



1 Achilles, of whom Horace says, Odes, IV. vi [lines 13 ff.] : 

He did not hide in the horse which feigned to be 
An oflering to Minerva, to deceive the Trojans 
In untimely festivals, and the court of Priam 

Gay with choral dances ; 
But openly he fought, and harsh was he to the captives. 

See also what follows, upon which the Scholiast remarks : * Achilles never fought by underhand 
means, but always openly, in reliance upon his valour.' Note the phrase ' In reliance upon his valour ' , 
which fits excellently with what we have said in the text at the beginning of this paragraph. 



622 



On the Law of War and Peace 



[Book III 



II 

Scholiast 
on Apol- 
lonius, II 



[Onthe 
Customs of 

theCatholtc 
Ckurch, II. 
57-] 






more glorious to outwit an enemy than to overcome him by force. 
Then they added the following : 

In some cases, for the moment, more is accomplished by deceit than by valour, 
but onlv his mind is forever conquered from whom the confession has been extorted 
that he has been conquered not by artifice, nor by chance, but after joining forces in 
battle in a just and righteous war. 

Later we read also in Tacitus : l The Roman people takes ven- 
geance on its enemies, not by fraud, nor in secret, but openly with 
arms in hand.' Such men were the Tibareans also, who even agreed 
upon the place and time of battle. In Herodotus Mardonius makes 
a similar assertion regarding the Greeks of his time. 

XXI. It is not permissible for us to force any one to do zvhat is right 
for us but notfor him 

To the conduct of operations this principle also applies, that it 
is not permissible to force or to entice any one to anything which 
may not be permissible for him to do. 1 The following may serve 
as examples. It is not permissible for a subject to slay his king, nor 
to surrender towns without public consent, nor to despoil his fellow- 
citizens. Therefore it is not permissible to influence a subject, >vho 
remains such, to do these things. For he who gives to another cause 
to sin always sins himself as well. 

It is not enough to urge in reply that for him who forces such 
a man to a crime an act of this kind, as the killing of an enemy, is 
legitimate. The deed it is in fact permissible for him to compass, 
but not in this way. Augustine well says : ' It makes no difference 
whether you yourself commit the crime, or whether you wish another 
to commit it for you.' 

XXII. Nevertheless we may make use of assistance voluntarily offered 

The case is difTerent when for a thing which is permissible for 
him a person avails himself of the help of one who does wrong 
voluntarily and not at his instigation. That this is not wicked we 
have proved elsewhere by the example of God Himself. 2 ' We 
receive a deserter by the law of war ', says Celsus ; that is, it is not 
contrary to the law of war for us to receive him who abandons the 
side of the enemy and chooses our own. 3 

1 This is also the teaching of Maimonides in Halakol Toubal, v. io. 

* In II. xxvi. 5. 

* Am: to be surrendered, unless this has been agreed upon in the terms of 
peace, as in the pcace with Philip, the Aetolians, and Antiochus. See Polybius, Selections on Embassies, 
ix, xxviii and xxxv [ -Htstortes, XVIII. xliv : XXI. xxx ; XXI. xivj. Menander Protector also 
$upports this view [frag. 11, p. 22, edit. Dindorf]. 



CHAPTER II 



HOW BY THE LAW OF NATIONS THE GOODS OF SUBJECTS MAY 

BE HELD FOR THE DEBT OF THEIR RULERS ; 

AND THEREIN, ON REPRISALS 

I. By natural lazv no one except an heir is bound by the act of another 

i. Let us proceed to principles derived from the law of nations. 
These principles relate in part to war in general, and in part to a 
particular aspect of war. Let us begin with the general considerations. 

By the strict law of nature no one is bound by another's act, 
except one who inherits his property ; for the principle that property 
should be transferred with its obligations dates from the establish- 
ment of proprietary rights. 1 The Emperor Zeno says that it is 
contrary to natural justice for persons to be harassed for the debts 
of strangers. Hence the titles in the Roman Law ; the wife is not 
to be sued for her husband, nor the husband for his wife, the son for 
his father, nor the father or mother for their son. 

2. The debt of the corporation, moreover, is not a debt of the 
individuals, [444] as Ulpian well declares, especially if the cor- 
poration has property ; for the rest the members of a corporation 
are bound not as individuals, but as a part of the corporate body. 
Seneca says : 6 If any one lends money to my country, I shall not 
say that I am his debtor, nor will I admit this is my loan ; yet I shall 
give my share towards paying it off \ 2 He had previously said : ' As 
one of the people I shall not pay as though for myself, but I shall 
contribute as for my country ' ; also, ' Individuals will be indebted 
not as if for their personal debt, but for a share of the public debt.' 

Hence in the Roman Law it was speciflcally provided that no 
member of a village should be held for the debts of other villagers ; 
and elsewheYe it is ordered that no property of one person is to be sued 
for the debts of others even if public debts. In a novel of Justinian, 
c pledge-taking ', 3 that is, the taking of sureties for others, is forbidden, 
and the reason given is that it is not reasonable for one person to be 
the debtor and another to be made to pay. Here also exactions of 
this sort are called hateful. King Theodoric, in Cassiodorus, calls it 
disgraceful to permit one person to give sureties for another. 

1 See above, II. xxi. 19. Add Decretals, V. xvii. 5 ; Decretals, V. xix. 9. 

2 See the Law of Sicily, Book I [title c]. 

3 Sext, V. viii. 1 : ' Sureties which current speech commonly calls reprisals (repressalias).' It 
would be more correct to write, as certain books do, reprensalias, for this corresponds exactly to the 
Saxon word ' withernam ', but usage has accepted the other. 

1569-27 U u- 623 



Dig. III. 
iv. 7. 1. 



Variae, 
IV [x]. 



624 



On the Law of War and Peace 



[Book III 



Institutes, 



Thomas 
Aquinas, 
II. ii, qu. 
40, art. 1 ; 
Molina, 
disp. 120 
and 121 ; 
Valentia, 
Dispuia- 
tions, iii, 
qu. 16, 
no. 3; 
Navarrus, 
xxvii, no. 
136. 



[xxxii. 13]. 

Gdlius, 

XVI. iv. 

VIII 

and clsc- 
where. 



II. A 'evertheless it has been established by the law of nations that both 
the possessions and the acts of subjects are liable for the debt of 
a ruler 

1. Although what has just been stated is true, nevertheless by 
the volitional law of nations there could be introduced, and appears 
to have been intrcduced, the principle that for what any civil society, 
or its head, ought to furnish, whether for itself directly, or because 
it has bound itself for the debt of another by not fulfilling the law, 
for all this there are held and made liable all the corporeal or incor- 
poreal possessions of those who are subject to such a society or its head. 

This principle, furthermore, is the outgrowth of a certain 
necessity, because otherwise a great licence to cause injury would 
arise ; the reason is that in many cases the goods of rulers cannot 
so easiJy be seized as those of private persons, who are more numerous. 
This then finds place among those rights which, as Justinian says, 
have been established by civilized nations in response to the demands 
of usage and human needs. 

2. This principle, however, is not so in conflict with nature 
that it could not have been introduced by custom and tacit consent, 
since sureties are bound without any cause, merely by their consent. 
It was hoped that members of the same society would be able through 
mutual relations to obtain justice from one another, and provide for 
their indemnification, more easily than foreigners, to whom in 
many places slight consideration is given. Hence the advantage 
derived from this obligation was common to all peoples, so that 
he who might now be burdened by it at another time might in 
turn be relieved. 

3. That this usage has been accepted, appears from the perfect 
wars ! which peoples wage against peoples. The practice observed 
in such wars is in fact revealed by the formulas of declaration, as : 
' I declare and make war upon the peoples of the ancient Latins and 
the men of the ancient Latins,' and in the question ' whether they 
wished and ordered that war be declared upon King Philip and the 
Macedonians who were under his rule '. It is evidenced also by the 
decrce itself, as, ' The Roman People orders that war be waged upon 
the people of the Hermunduri and upon men of the Hermunduri ', 
which is cited from Cincius on military affairs ; and elsewhere, as, 
' Let him be an enemy, and also those who are within his defences.' 

s of Damascus distinguishes wars from seizures of this sort, in showing that 

Herod.whohad no right to make war upon the Arabs, could 'take reprisals' (fivma Xavtfdvdi) to use 

aap! rdancewitha The words are those of Josephus, 

Antiqnttits of the J -;], where we find also this : [448] * After relatin^ that fivehundred 

taJents were owc: :,at the written bond resarding these stipulated that when the day 

ed had passed I . ties from all the territory of the Arabs, he [Nicholas] 

declared that th; . t the just collection of a debt.' 



Chap. II] 



Goods of Subjects and Debt of Rulers 



625 



We see that the same right is invoked also where a state of perfect 
war has not yet been reached, but where nevertheless there is need 
of an enforcement of a right by violent means, that is, by means of 
an imperfect war. Long ago Agesilaus said to Pharnabazus, who 
was a subject of the king of Persia : ' Formerly, Pharnabazus, when 
we were friends of the king, we treated his possessions as became 
friends ; now that we have become enemies, we treat them as belong- 
ing to a foe. Since, therefore, we see that even you desire to be classed 
among the king's possessions, we do right to strike at him through you.' 

[445] III. An example in the seizure of persons 

1 . One f orm of the enf orcement of right regarding w T hich I am 
speaking was what the Athenians called s seizure of men \ Of this 
a law of Attica said : ' If any one die by a violent death, for his sake 
it shall be right for his relatives and next of kin to proceed to apprehend 
men, until either the penalty has been paid for the murder, or the 
murderers are given up. Such seizure may extend to three persons, 
and no more.' Here we see that for the debt of the state, which is 
bound to punish its subjects who have injured others, there is put 
under obligation a certain incorporeal right of its subjects, that is, 
their liberty of remaining where they wish and of doing what they 
wish ; in consequence such subjects are temporarily in servitude, 
until the state does that which it is bound to do, that is, until it 
punishes the one who is guilty. 

Although the Egyptians, as we learn from Diodorus Siculus, 
used to maintain that neither a person nor his liberty should be 
bound for a debt, nevertheless there is nothing in this that is repugnant 
to nature, and the practice not only of the Greeks, but of other nations 
also, has prevailed to the contrary. 

2. Aristocrates, the contemporary of Demosthenes, had pro- 
posed a decree to permit the apprehension anywhere of any one who 
should slay Charidemus, and to number among the public enemies 
any who should resist such seizure. In this proposal Demosthenes 
criticizes many points : first, that Aristocrates did not distinguish 
between killing justly and killing unjustly, although sometimes it 
may be just to kill ; secondly, that he did not require that a trial 
be previously demanded ; and, further, that he wished those who 
received the homicide to be held responsible and not those among 
whom the killing was done. The words of Demosthenes are : 

For the law ordains that if those, among whom the wrong is suffered, do not pay 
the penalty nor surrender the culprits, these shall be apprehended to the number of 
three. But he lets these indeed go unpunished, and makes no mention of them ; while 
he proposes that those shall be outlawed who have received the murderer when he has 

u u 2 



Plutarch, 
A gesilaus 
[xii-p. 

602 D E], 

and Xeno- 
phon, 
Greek 
History, 
IV [Hel- 
lenica, IV. 
i. 34 ff-]. 



[Demo- 

sthenes, 

Against 

Aristo- 

crates, 

xxiii. 82 

p. 647.] 



[Against 
A risto- 
crates, 
xxiii. 84-5 
=p. 648.] 



626 



On the Law of War and Peace 



[Book III 



II. xxi. 7 
[5]. 



[Onomas- 
ticon,] 
VIII. vi 
[VIII. 1.] 



[under 
word 

dvfyo- 
Xn+ia.} 



XX XIV 
[lxi.i 3 ]. 



taken refuge with them if they do not freely surrender him ; I shall state the case in 
accordance with the custom common to mankind, which bids us receive the fugitive. 

The fourth point of criticism is that Aristocrates at once brings 
the matter to a state of perfect war, when the law would have been 
satisfied with an arrest. 

3. Of these criticisms the first, second, and fourth are not 
without reason. But the third objection, unless it is restricted to 
the single case of killing by accident or in self-def ence, can only have 
been offered rhetorically, and more for the sake of argument than 
according to truth and right. For the law of nations that suppliants 
shall be received and protected applies, as we have previously said, 
only to those who are endangered by ill fortune and not by crime. 

4. In other respects the law is the same for those among whom 
the crime has been committed and for those who refuse to punish 
or surrender the guilty person. Therefore either that very law, on 
which Demosthenes relies, received from practice the interpretation 
that I give, or afterward it was more explicitly formulated against 
such quibbles. That one of these alternatives is true will not be 
denied by any one who has given attention to the following definition 
of Julius Pollux : * Seizure of men takes place when any one upon 
demand does not receive murderers who have fled to some persons 
for refuge, for in that case he has the right [446] to carry off as many 
as three persons of those who have not surrendered the culprits.' 
In the same sense Harpocration says : ' Seizure of men is the right 
to carry off men from some city. For they used to take sureties 
from a city which held a murderer and would not give him up for 
punishment.' 

5. Similar to this right of seizure is the right of detention of 
citizens of another state in which a manifest wrong has been done 
to a national, in order to secure his recovery. Accordingly at Carthage 
certain persons prevented the seizure of Ariston of Tyre, giving it 
as their reason that ' The same thing will happen to Carthaginians 
both at Tyre and in the other commercial centres to which they go 
in large numbers '. 



Baldus, 
Consilia, 
III. 58; 
Baxtolus, 
On Re- 
Prisals, 
qu. v, ans. 
to obj. 3, 
no. 9. 



IV. An example in the seizure of goods 

Another form of the enforcement of right by violence is ' seizure 
of goods ' or ' the taking of pledges between difTerent peoples V 
This is called by the more modern jurists the right of reprisals ; 
by the Saxons and Angles ' withernam ', and by the French, among 
whom such seizure is ordinarily authorized by the king, ' letters of 

1 This is called (tvkas by Demosthenes in his oration For the Crown [For the Crown ojthe Trierarchy, 
li. 13 - p. 1232] ; also by Aristotle, Economics, II [II. ii. 10]. 



Chap. II] 



Goods of Subjects and Debt of Rulers 



627 



marque \ This enforcement of right occurs, as the jurists say, 
where a right is denied. 



V. Seizure is warranted after a right has heen denied, and when it 
may properly he considered as settled that this has heen done ; 
wherein it is shown that a judicial decision does not properly give 
or take away a right 

1. Seizure by violence may be understood to be warranted not 
only in case a judgement cannot be obtained against a criminal or 
a debtor within a reasonable time, but also if in a very clear case 
(for in a doubtful case the presumption is in favour of those who 
have been chosen by the state to render judgement) judgement 
has been rendered in a way manifestly contrary to law ; for the 
authority of the judge has not the same force over foreigners as over 
subjects. 

Even among subjects such a decision does not cancel a true 
obligation. ' A true debtor, even though he is absolved, still remains 
a debtor by the law of nature,' * says Paul the jurist. ' And when 
by a wrongful decision of a judge a creditor had taken away from its 
owner, as if it had been bound over to him, property which did not 
belong to the debtor, and the question was raised whether, after the 
payment of the debt, this should be restored to the debtor, Scaevola 
approved of its restitution.' There is this difference, that subjects 
cannot legally hinder by force the execution of a judgement even 
if it is unjust, or assert their rights by force against it, because of the 
effectiveness of the authority over them ; but foreigners have the 
right of compulsion, which they may not use, however, so long 
as they can obtain what is theirs by a judgement. 

2. The principle, therefore, was not introduced by nature, 
but has been widely accepted in practice, that for such a cause 
the persons, 2 or movable property, of the subjects of him who does 
not render justice, may be seized. The most ancient instance is 
given by Homer, in the Iliad [XI. 674]. Here it is recounted that 
Nestor seized the flocks and herds of the men of Elis in revenge for 
the horses stolen from his father, ' taking reprisals ', 3 as the Poet 

1 Here applies what is said by Gail, De Pace Publica, II. viii. 7, and Vazquez, Conlroversiae illustres, 
IV. x. 41. 

2 See the example in Ammianus, Book XVII [XVIII. ii], where Julian detains certain of the 
Franks until the prisoners should be set free according to the agreement. Add what Leo of Africa 
has on the subject of Mt. Beni Gualid, Book III [ = p. 435]. 

3 You will find pvaia in this sense in the Selections on Embassies, from Polybius, no. xxxviii [ =p. 276], 
where he speaks of the Achaeans acting against the Boeotians ; and in no. cxxiii [= p. 352] fivaidfciv 
is found in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis, I = p. 214] from Diodorus Siculus. 
Elsewhere, however, the phrase pvaia fcaray-feWeiv is employed in speaking of war, as we shall say 
shortly in III. iii. 7 ; for these things are closely connected. 



Dig. XX. 
v. 12. 1. 
Innocent 
and Panor- 
mitanus, 
On Decre- 
tals, III. 
xlix. 8 ; 
Soto, III, 
qu. iv, 
art. 5. 

Jac. de 
Can., An- 
charano, 
Domin., 
Francis- 
cus, On 
Sext, V. 
viii. 1 ; 
Fulgosius 
and Salic, 
On Auth., 
Code, IV. 
x ; Jac. de 
Belvisio, 
On Auth., 
Ut non 
fiant 
pignora ; 



628 



On the Law of War and Peace 



[Book III 



Syl., word 
repressa- 
lia ; Bar- 
tolus, On 
Reprisals ; 
Guy de la 
Pape, qu. 
xxxii ; 
Gail, De 
Pigno., i 
no. 5 ; 
Yictoria, 
De Iure 
Belli, 
no. 4: ; 
Covarru- 
On 
V. 
ult. 4, pt. 
1. 9- 

. XI. 

. II 
[xxxiv. 4]. 
Halicar., 
VII [xii]. 



;il. xv. 
16; xxi. 
IX.] 



;ii;. i. 

2 and 13. 



Decio, 
Consiiia, 

CCCli: 
dus, On 
Dizest, I. 
xxii. 3. 



says ; in this passage Eustathius explains ' reprisals ' as ' what is 
confiscated in return for something, that is, dragged off and seized 
in return for what has been previously taken \ The narrative goes 
on to say that all those to whom anything was owed by the Eleans 
were summoned by proclamation to secure their rights, surely, 
Lest any one of his just due should be deprived. 

Another instance is in Roman history, in the case of the Roman 
ships which Aristodemus, the heir of the Tarquins, held at Cumae 
as compensation for the property of the Tarquins. Dionysius of 
Halicarnassus states that slaves, cattle, and money were held. Still 
another instance is given by Aristotle, in the second book of the 
Economics, on the law of the Carthaginians relating to seizure of the 
ships of foreigners, ' if any one has a right of seizure ', as the condition 
is there expressed. 

VI. Sucb seizure does not warrant the taking of human life 

That for such a cause the lives of innocent subjects are liable, 
has perhaps been believed among some peoples, because [447] 
they supposed that every man has in himself a full right over his life, 
and that it was possible to transfer this to the state. That supposition, 
as we have elsewhere said, is by no means capable of proof, nor is it 
in harmony with a more sound theology. 

Nevertheless it may happen that those who wish by force to 
hinder the enforcement of a right may be killed, not intentionally 
but accidentally. But if this can be foreseen, we have shown elsewhere 
that we ought rather to surrender the furthering of the right, in 
accordance with the law of love. According to this law, particularly 
for Christians, the life of a man ought to be of greater value than 
our property, as has been proved in another connexion. 

VII. The distinction between what there is relating to this matter in 
municipal law and in the law of nations 

1. In this matter, no less than in others, we must take care not 
to confuse the things which properly belong to the law of nations 
and those which are established by municipal law or treaties between 
peoples. 

2. By the law of nations all subjects cf him who does the 
injury are liable to the furnishing of sureties, provided they are 
subjects from a permanent cause, whether native or immigrant, and 
not persons who are present anvwhere for the purpose of travel or 
for a brief residence. The furnishing of pledges is treated after the 
manner of burdens which are imposed in order to pay the public 
debts, and from which those are immune who are only temporarily 



Chap. II] 



Goods of Subjects and Debt of Rulers 



629 



subject to the laws of the place. However, ambassadors are excepted 
by the law of nations from the number of subjects, provided that 
they have not been sent to our enemies ; and their goods also are 
excepted. 

3. By the municipal law of states, however, the persons of 
women and children are often excepted ; and in fact even the 
property of those who are engaged in literary pursuits or come to 
carry on trade. By the law of nations individuals possess the right 
of taking sureties, as at Athens, in the seizure of men. By the municipal 
law of many countries this right is ordinarily sought in some cases 
from the supreme authority, in other cases from judges. 

By the law of nations ownership is acquired over seized goods 
by the mere act of seizure, up to the limit of the debt and expenditure, 
in such a way that the residue shall be restored. 1 By the municipal 
law the parties concerned are usually summoned, and afterwards by 
public authority the property is sold or assigned to those who are 
affected. But for these and other topics reference should be made 
to those who discuss the municipal codes ; on this subject particularly 
Bartolus, who has written on reprisals. 

4. A further statement I shall add, because it concerns the 
mollification of this law, which is in itself sufficiently rigorous. Those 
who, by not paying what they owe or by not furnishing satisfaction, 
have given occasion for the taking of sureties, by natural and divine 
law are bound to make good the damages 2 to others, who for that 
reason have incurred a loss. 

1 Gregoras, Book IX [IX. v], records that the Venetians followed this principle of justice, upon the 
capture of the Genoese ships at Galata : ' But they did not destroy any of the cargo of the ships they 
had taken, which cargo consisted of wheat and barley, and in addition salt fish from the Copaic and 
Maeotic Marshes and the river Don. These they preserved with care, in their full measure, until they 
should restore them intact upon the receipt of what was owed them.' 

2 Plutarch, in his Cimon [viii = p. 483 c], says of the Scyrians : ' The majority did not wish to make 
a monetary contribution, but they gave orders that those who possessed or had seized the property 
of others should make good the loss.' 



Aegidius 
Regius, 
De Actibus 
Superna- 
turalibus, 
disp. 13, 
dub. 7, 
no. 117. 



CHAPTER III 

ON WAR THAT IS LAWFUL OR PUBLIC ACCORDING TO THE LAW 
OF NATIONS ; AND THEREIN, ON THE DECLARATION OF WAR 

I. A public war according to the law ofnaiions is a war between different 
peoples 

[449] 1. In a previous passage l we began to say that by authors 
of repute a war is often called lawful not from the cause from which 
it arises, nor, as is done in other cases, from the importance of its 
exploits, but because of certain peculiar legal consequences. Of 
what sort a lawful war is, however, will best be perceived from the 
definition of enemies given by the Roman jurists. 

* Enemies are those who in the name of the state declare war 
upon us, or upon whom we in the name of the state declare war ; 
others are brigands and robbers ', says Pomponius. Similarly Ulpian : 

Enemies are those upon whom the Roman people have publicly declared war, or who 
have themselves declared war upon the Roman people ; others are called thieves and 
brigands. And so he who has been captured by robbers is not their slave, 2 and has no need 
of the right of postliminy. But he who has been captured by enemies, as by the Germans 
or Parthians, is a slave of the enemy, and recovers his former status by postliminy. 

Paul says : ' Those who are captured by pirates 3 and brigands 
remain free.' There is a further statement by Ulpian : 

In civil contentions, although the state is thereby often injured, nevertheless the 
destruction of the state is not aimed at ; the citizens who support either side after the 
manner of enemies are not in the position of those who possess rights of captivity or 
postliminy. In consequence it has been decided that for those who have been captured, 
sold, and later set free, it would be superfluous to attempt to recover from the emperor 
their free status, which they had not lost by captivity. 

2. It needs only to be noted further that we may understand 
that any one who has the supreme authority in a state may take the 
place of the Roman people in our illustration. * An enemy ', says 
Cicero, ' is the one that has a state, a senate, a treasury, the agreement 
and concord of the citizens, and the power, if the course of events 
leads thereto, to conclude peace and an alliance.' 



I I.: 

1 Hence the plot of the Potnulus of Plautus, and the Eunuch of Terence. Such a one was also 
Eumaeus, Odyssey, XV [lines 402 ff.]. 

1 Pompey pronounced those free who had been captured by the pirates ; Appian, Mithridatic Wars 
xiv. 96]. See also Hcrrera, vol. 11. 

630 



Chap. III] On War that is Lawful or Public 631 

II. The distinction between a people, although acting unjustly, and 
pirates or brigands 

1. Moreover, a commonwealth or state does not immediately 
cease to be such if it commits an injustice, even as a body ; and 
a gathering of pirates and brigands is not a state, even if they do 
perhaps mutually maintain a sort of equality, without which no 
association can exist. The reason is that pirates and brigands are 
banded together for wrongdoing ; l the members of a state, even 
if at times they are not free from crime, nevertheless have been united 
for the enjoyment of rights, and they do render justice to foreigners. 
If the treatment of members of other states is not in all respects 
according to the law of nature, which, as we have showed elsewhere, [H. n 
has become partly obscured among many peoples, it is at least accord- lJ 
ing to agreements entered into with each state or in accordance with 
customs. 

Accordingly the scholiast on Thucydides notes that, at the time i[v]. 
when it was considered legitimate to plunder at sea, the Greeks 
refrained from murder and raids by night, and from the seizure of the 
cattle of ploughmen. Strabo relates that other peoples also, who xi[ii. 
lived in like manner by plunder, upon returning home after being at 
sea, sent word to the owners in order that these might, if they wished, 
recover their stolen property at a fair price. 2 To such persons 
applies the passage in Homer's Odyssey, XIV : [xiv. 

Themselves eager for loot, who to the land 
Of strangers fare ; if gods above grant booty, 
With laden ships they leave and homeward go, 
And dread fear falls on those they leave behind. 

[450] 2. In moral questions, furthermore, the principal 
element is considered as determining the essential character. As 
Cicero has rightly said in the fifth book On Ends : ' The whole of [v ;XXX . 
an object takes its name from that constituent of it which comprises 
the most important elements and has the most far-reaching eftect.' 
With this accords the saying of Galen : ' Names are taken from the 
most potent element in the compound.' The same author often 
designates such things as ' named after the chief element '. 

Cicero, then, spoke too sweepingly when he said, On the Common- [in 
wealth, Book III, that where an unjust man is king, or where the city^of'' 
aristocracy or the people itself is unjust, there is not a wicked state, but God, 11. 



1 ' A mob not in lawful association. but brought together in order to commit wrong ' ; Procopius, 
Vandalic War, II [II. xv]. 

2 Such were those who are mentioned by Saxo, XIV [p. 234]. To such a degree, as Plutarch [Cimon, 
viii = p. 483 c] notes, the Scyrians had deteriorated in course of time : ' Although from antiquity they 
had practised piracy at sea, finally they did not refrain from committing injury upon those who were 
sailing to them to carry on trade.' 



92. 



XX i.] 



632 



On the Law of War and Peace 



[Book III 



On the City 
of God, 
XlX.xxiv. 



Borys- 
thcnitica 
[Orations, 
xxxvi = 

P- 443L 
and On 
the Lam 
[Orations, 
Ixxv.end]. 
[On Con- 
cord = p. 
385 a B.] 



[Digest, 
XLIX. 
xv. 24.] 

[GaUic 

War), VI 

[xxiii]. 

Onthc 

Customs 

ofthcGer- 

mans 

[xlvi]. 

Annals, 

XII 

[xxvii]. 

Historics, 

iv m. 

Appian, 
lllyrian 

Wars [ii. 
91. 



none at all. In correction of this view Augustine says : ' Nevertheless, 
I should not go so far as to assert that the people as such does not 
exist, or that its organization is not a state, so long as there remains 
some sort of union in a reasoning populace, associated through 
harmonious participation in the things which it chooses.' A body 
that is sick is nevertheless a body still ; and a state, although seriously 
diseased, is a state so long as there remain tribunals and the other 
agencies that are necessary in order that foreigners, no less than 
private citizens, in their relations one with the other may there 
obtain their rights. Dio Chrysostom ofTers a more correct judgement 
in saying that the law (especially that which goes to make up the 
universal common law) exists in a state just as the mind in the human 
body ; for when this is taken away the state ceases to exist. 1 In 
the speech in which he urges the Rhodians to harmony, Aristides 
shows that many good laws may exist even under a tyranny. Aristotle 
in his Republic [Politics], Book V, chapter ix, says that if any one 
presses the violence of the few, or of the people, too far, the state 
first becomes full of faults, and finally ceases to be. 
Let us illustrate this subject by examples. 

3. We heard Ulpian saying above that captives taken by brigands 
do not belong to those who capture them. He says further that 
captives taken by the Germans lose their freedom. And yet among 
the Germans marauding expeditions which are sent beyond the 
borders of a state * involve no disgrace ', as Caesar states. Of the 
Venedi, Tacitus says : ' With their marauding expeditions they 
overrun the forests and mountains that lie between the Peucini and 
the Fenni.' In another place he says that the Chatti, a famous people 
of Germany, engaged in marauding expeditions. In the same author 
the Garamates are a nation fertile in marauding expeditions, but 
still a nation. 

The Illyrians without distinction were accustomed to plunder 
on the sea, yet a triumph was celebrated over them ; Pompey 
celebrated no triumph over the pirates. So great is the distinction 
between a people, however wicked it may be, and those who, although 
not forming a people, associate together for the sake of crime. 



[Judgcs, 
xi. 3 ff] 
[Justin, 
XLI. iv ; 
XLIV. ii.] 



III. Sometimes a transformation is effected 

Nevertheless a transformation may take place, not merely in 
the case of individuals, as when Jephthes, Arsaces, and Viriathus 
instead of being leaders of brigands became lawful chiefs, but also in 



1 Cicero, Leiters, X. i [X. i. i] ' There are neither laws, nor courts, nor any semblance and 
trace of a sute.' 



Chap. III] 



On War that is Lawful or Public 



633 



the case of groups, so that those who have only been robbers upon 
embracing another mode of life x become a state. In discussing 
brigandage Augustine says : c If by accessions of desperate men this 
evil grows to such proportions that it holds lands, establishes fixed 
settlements, seizes upon states and subjugates peoples, it assumes 
the name of a kingdom.' 



Onthe 
City of 
God, IV. 



IV. It is essential to the nature of a public war that it should have 
the support of the sovereign power ; in what way this is to he 
understood 

What persons have the sovereign power, we have already stated. 
Hence it may be understood that, if any possess the sovereign power 
in part, they may to that extent wage a lawful war. 

This principle apphes with even greater force to those who are not 
subjects, but are allied on an unequal footing. 2 So we learn from 
history that all formalities of lawful war were observed between 
the Romans and their allies, the Volsci, Latins, Spaniards, and Cartha- 
ginians, although these had an inferior status in the alliance. 



Cajetan, 
On II. ii, 
qu. 40, 
art. 1. 



V. A declaration of war is also requisite 

That a war may be lawful in the sense indicated, it is not enough 
that it be waged by sovereign powers on each side. It is also necessary, 
as we have said, that it should be publicly declared, and in fact 
proclaimed so publicly that the notification of this declaration be 
made by one of the parties to the other ; 3 whence [451] Ennius 
spoke of battles proclaimed in advance. In the first book On Duties 
Cicero says : c But the right usage of war has indeed been most 
scrupulously prescribed by the fetial law of the Roman people. 
According to this we are given to understand that no war is lawful 
unless it is waged for the recovery of property, or has been previously 
threatened and proclaimed.' 

More concisely speaks an ancient writer in Isidore : c A lawful 
war is one that is waged by declaration, for the recovery of property 
or to repel enemies.' Thus Livy, in his description of a lawful war, 
says that the war is waged openly and in accordance with public 



[Cf. 

Gellius, 
xx. 10.] 

[I. xi. 36.] 



[Etymo- 
logies, 
XVIII. i. 

I [xxvii. 
3]. 



1 An example is found in the case of the Mamertini ; Diodorus Siculus, fragments [XXI. x and 
XXII]. 

2 Like the Duke of Lorraine, in Krantz, Saxonica, XII. xiii. The city of Stralsund declared war 
upon its Pomeranian rulers ; Krantz, Vandalica, XIV. xxxv. 

3 Josephus, Antiquities [455] ofthe Jews, XV [XV. v. 3], says : ' It is not lawful to wage a war 
that has not been previously declared.' 

For examples of this practice among the nations see Krantz, Saxonica, XI [XI. v], and Oderborn 
in his Life of Basilides, III. The opposite conduct of the Turk Olizasthlan [Chlizasthlan], and the 
Serb Neemon, are censured by Nicetas, [On Manuel Comnenus,] III [III. vi] and IV [V. iv]. 



634 



On the Law of War and Peace 



[Book III 



XXXI 

[xiv. 10]. 



decree. Also, after relating that the Acarnanians had laid waste Attic 
territory, he adds : * This was the first manif estation of hostile feelxng ; 
afterward a lawful war was declared by decrees and voluntary pro- 
clamations of the states.' 



[lxxxvi]. 



[Ram. 
Ant.,] I 
[lviii]. 
[Tactica, 

i-] 

[Oraiions, 
xxxviii = 
P- 473] 

[XXXV. 

Ii. 2.] 



VI. What element in the declaration of war is in accordance with the 
law of nature, and what is feculiar to the law of ?iations, is set 
forth with distinctions 

1 . To understand the foregoing passages, and others dealing with 
the declaration of war, we must carefully distinguish what is due 
according to the law of nature, what is not due by nature but is 
honourable, what is required by the law of nations to secure the 
effects peculiar to this law, and what, in addition, is derived from 
the particular institutions of certain peoples. 

In a case where either an attack is being warded off, or a penalty 
is demanded from the very person who has done wrong, no declara- 
tion is required by the law of nature. This is what Sthenelaidas, 
the ephor, says in Thucydides : l ' We who have been wronged in 
more than words are not to seek satisfaction in words or judicial 
proceedings.' Latinus in Dionysius of Halicarnassus declares : 
1 Every one who is attacked repels him who begins the war.' Aelianus, 
quoting from Plato, says that a war which is undertaken to repel 
force is proclaimed, not by a herald, but by nature. Hence Dio 
Chrysostom, in his address To the Nicomedians, says : ' Most wars 
begin without declaration.' 

For no other reason Livy criticizes Menippus, an officer of 
Antiochus, because he had slain certain Romans when war had not 
yet been declared, and when no hostilities had been engaged in, so 
that they could have heard that swords had been drawn or even that 
blood had been shed ; by this he shows that either of these two 
steps could have sufficed to justify the action. Not more necessary, 
by the law of nature, is a declaration of war in case an owner wishes 
to seize what belongs to him. 

2. But whenever one thing is seized in place of another, or the 
property of a debtor is taken for his debt, and all the more if one 
wishes to take possession of the property of those who are subject 
to the debt, then a demand for settlement is required, to establish 
the fact that it is impossible in any other way to obtain what is ours 



1 Sec also Thucydides, Book III [III. lvi], in the speech of the Plataeans : ' According to the law 
that is in vogue among all peoples, it is right to defend ourselves against him by whom we are assailed 
in a hostile manner.' 

In Diodorus Siculus, Excerpta Peiresciana [i = p. 272], Flaminius ' called all the gods and men to 
witness that the war had been begun by the king'. See also what is in Mari: riii. On war 

that has not been declared see Dexippus, Selections on Embassies [ = frag. 22, p. 195, edit. Dindorf]. 



Chap. III] 



On War that is Lawful or Public 



635 



or what is owed to us. For this is not a primary right, but a secondary 
and vicarious right, as we have elsewhere explained. Thus, even before 
the possessor of sovereign power is attacked for the debt or crime 
of a subject, a demand for settlement should be made, which may 
place him in the wrong, and in consequence of which he may be held 
either to be causing us loss or to be himself committing a crime, 
according to the principles which have previously been discussed. 

3. But even in case the law of nature does not require that 
such a demand be made, still it is honourable and praiseworthy to 
make it, 1 in order that, for instance, we may avoid giving oflence, 
or that the wrong may be atoned for by repentance and compensation, 
according to what we have said regarding the means to be tried to 
avoid war. 2 Here applies this verse also : 

At first no one has sought to try extremes. 

Here, too, applies the command which God gave to the Jews, 3 
that they should first invite to peace the city which was to be attacked. 
This command, although given to that people for a particular case, 
has been wrongly confused by some with the law of nations. For the 
peace there referred to is not peace in general, but one dependent 
upon a condition of subjection and tribute. [452] When Cyrus 
came into the territory of the Armenians, before doing harm to 
any one he sent to the king those who represented him in order to 
demand the tribute and soldiery due according to the treaty, ' thinking 
that this was a more friendly procedure than to advance without 
a previous declaration ', as Xenophon says in his History. But by 
the law of nations a proclamation is required in all cases in order 
to secure these particular effects, not, however, from both parties 
but from either one. 



Deutero- 
nomy, 

XX. II 

[xx. 10]. 



VII. A declaration of war is sometimes conditional, sometimes absolute 

1 . Now the declaration of war is either conditional or absolute. 

It is conditional when it is joined with a demand for restitution. 
Moreover, under the title of things sought in recovery, 4 the fetial law 
included not merely a claim by right of ownership, but also the 
efTort to obtain that which is owed on a civil or criminal charge, 



1 See Mariana, XXVII. xiii. 

2 II. xxiii. 7. 

3 Josephus, Antiquities ofthe Jews, V. ii [V. ii. 9] : ' But the council of the elders restrained them, 
showing them that they should not suddenly wage war on their fellow citizens, before the causes of 
complaint had been argued in words, since the law did not permit them to lead an army even against 
foreigners when they had sufifered wrong, unless they had first sent an embassy and tried means by which 
the wrongdoers might be brought back to a more reasonable frame of mind.' 

4 See Paruta, On the War in Cyprus, Book I Bizarri, Book XXIII, with regard to the Turks ; 
Reinkingk, II. 111. 4. 



636 



On the Law of War and Peace 



[Book III 



[II. i. 2. 2 

xxi. 4.] 



VIII 

[xxiii. 7l- 



Annals, 

I [xlviii]. 

[385 ffj 



[Thebaid, 
XII. 598.] 



[IV. liii.] 



[Etymo- 
logies, 
XVIII. i.] 



, I. 
xxxii. zo.] 



as Servius l rightly explains. Hence arises this phase in the formulas, 
' to be restored, satisfied, surrendered ', where, as we have elsewhere 
said, ' surrendered ' must be understood with a reservation, to wit : 
unless those on whom the demand is made prefer to punish the guilty 
party themselves. Pliny 2 bears witness that this demand for restitu- 
tion was called a ' verbal demand '. 

A conditional declaration is recorded by Livy : ' That they 
would themselves use every means to free themselves from this 
injury unless it were removed by those who had inflicted it.' Another 
is given by Tacitus : ' unless they should inflict punishment upon 
the guilty, he would carry out a general massacre.' There is also an 
ancient example in the Suppliants of Euripides, when Theseus gives 
to the herald these instructions for his mission to Creon the Theban : 

Theseus, who holds the neighbouring kingdom's soil, 3 

The dead demands for burial ; granted that, 

Erechtheus' people will become your friend. 

If this with favour meet, retrace thy steps ; 

But if no heed is given, these other words employ : 

Let them soon look to see my youth in arms. 

Papinius in his description of the same event has : 

Proclaim either funeral pyres for the Danai 
Or for Thebes, battles. 

Polybius calls this ' to give notice of reprisals ', and the ancient 
Romans ' to give formal notice '. 

An absolute declaration is what is called in particular a proclama- 
tion or edict. This is made when one party either has begun hostilities 
(and this is what in Isidore is said to be a war for the repulse of 
enemies), or has himself committed crimes that call for punishment. 4 

2. Sometimes, indeed, an absolute declaration follows one that 
is conditional, although this is not necessary but superfluous. Hence 
arises the formula : 

I bear witness that this people is unjust, and does not give satisfaction. 

There is also a second formula : 

Whatever things, disputes, causes of complaint, 5 of which the pater patratus of the 
Roman people of the Quirites has formally notified the pater patratus of the people of the 



1 On the Aeneid, X [line 14]. 

* [Natural History,] XXII. xii [XXII. xii. 2] : ' And when ambassadors were sent to the enemy 
to rnake verbal declaration, that is, audibly to demand back the things that had been carried off, one 
of them was called the Verbenarius.' Again, in speaking of the plant verbena, the same author says, 

ix : 4 This it is which, as we have pointed out, the ambassadors carried to the enemy.' See 
Servius, On the Aeneid, IX fline 53], and X [line 14]. 

A similar formal declaration is in the Baltle oflhe Frogs and Mice [line 135 ff.], and at the begin- 
ning of the Amphitruo of Plautus [203 ff .]. See also Kromer, XXI. 

* See the example in Bembo, Book \ II. 

Compare the Greek of Dionysius of Ilalicarnassus, Selections on Embassies, ii [= p. 9]. 



Chap. III] 



On War ihat is Lawful or Public 



637 



Ancient Latins, which things the men of the Ancient Latins ought to have surrendered, 
done, paid, which things they have not paid nor surrendered nor done, these things I hold 
ought to be sought in just and righteous warfare ; and I agree and approve. 

The third formula is : 

Whereas the tribes of the Ancient Latins have acted and committed oflences against 
the Roman people of the Quirites, whereas the Roman people of the Quirites has ordered 
that there be war with the Ancient Latins, and the Senate of the Roman people of the 
Quirites has decreed, consented, agreed that war should be waged with the Ancient Latins, 
for this cause I and the Roman people declare and make war upon the tribes of the Ancient 
Latins. 

That in this case, as I have said, a proclamation is not strictly 
necessary, becomes apparent from the fact that it was formally made 
at the nearest garrison point. So the fetials declared when consulted 
in the case of Philip of Macedon, and afterward in the case of 
Antiochus, since the first proclamation had to be made to the person 
who was attacked in the war. The declaration against Pyrrhus 
[453] was in fact made to one of his soldiers, and that too in the 
Circus Flaminius, where this soldier was ordered to purchase a bit 
of ground for form's sake, as Servius narrates in his commentary on 
the ninth book of the Aeneid. 

3. Further proof of the superfluity of this formality is found 
in the fact that war is often declared by both parties. Thus the 
Peloponnesian War was declared by the Corcyreans and by the 
Corinthians, although it is sufficient that such a declaration be made 
by either one party or the other. 



Livv, 
XXXI 

[viii. 3] 

and 

XXXVI 

[iii. 7]- 



[IX. 52.] 



[Thucy- 
dides, I. 
xxix.j 



VIII. What elements in declarations of war fertain to municipal law 
and not to the law of nations 

To the customs and institutions of certain peoples, moreover, 
and not to the law of nations, belong the use of the herald's staff 
among the Greeks ; * the sacred herbs and bloody spear used first 
by the Aequicolae, then by the Romans, who followed their example ; 
the renunciation of any existing friendship or alliance ; the period of 
thirty days set after the demand for restitution ; the hurling of the 
spear 2 the second time ; and other formalities of this sort which 
should not be confused with those that properly belong to the law 
of nations. 

Arnobius informs us that in his time a great part of these 
formalities had ceased to be observed ; and, indeed, some were 



1 The origin of the herald's staff you will learn from Pliny, [Natural Hislory,] XXIX. iii, and 
Servius, On the Aeneid, IV [IV. 242] and VIII. 

2 See Servius, On the Aeneid, IX [IX. 53] ; Ammianus, XIX [XIX. ii. 6], with the r.otes of the 
erudite Lindenbrog. 



638 



On the Law of War and Peace 



[Book III 



V T arro, On 
the Latin 
Language, 
IV. 
[LII. xv.] 



Baidus, 
n Code, 
VII. ix. 2, 
no. 70. 



XXXVI 
[Ui.Xl]. 



already neglected in the time of Varro. The third Punic War was 
begun at the same time with the declaration. In Dio, Maecenas holds 
that certain of these formalities are peculiar to a democratic state. 

IX. A war declared against any one is at the same time declared 
against his subjects and allies, in sofar as they take his side 

Furthermore, a war declared against him who holds the sovereign 
authority in a state is held to be declared at the same time not only 
upon a)l his subjects, but also upon all who will join him as allies 
in such a way as to become an accession to him. This is what the 
more modern jurists mean when they say that defiance of the prince 
is defiance of his supporters ; for to declare war they call to send 
forth defiance. 

This principle is to be understood as applicable to the type of 
war waged against him upon whom it has been declared in the 
manner illustrated in the war against Antiochus. It was decided not 
to declare war against the Aetolians separately, because they had 
openly associated themselves with Antiochus. ' The Aetolians have 
voluntarily declared war against themselves ', was the response of 
the fetials. 



Livy, 
XXXVI 

[i. 5]. 



X. A zvar declared against any one is not held to be at the same time 
declared against his subjects and allies in so far as they are con- 
sidered by themselves ; illustration by examfles 

If, on the conclusion of a war declared against one who holds 
the sovereign power, another people or king is to be attacked, because 
of the aid that they have furnished, a new declaration of war will 
have to be made in order to meet the requirements of the law of 
nations. For in such a case the people or king is now not regarded 
as an accessory, but as a principal. It was therefore rightly said that 
the war of Manilius against the Gallo-Grecians and that of Caesar 
against Ariovistus were not lawful wars according to the law of nations. 1 
The Gallo-Grecians and Ariovistus were in fact attacked not as 
accessories to another war, but principals ; and for such a procedure 
by the Roman law a new authorization of the Roman people was 
required, just as a new declaration was required by the law of nations. 

What was said in putting the question in regard to the war 
against Antiochus : ' Did they desire, and did they direct, that war 
be begun with King Antiochus and with any who had espoused his 

1 Tnlawful also was that of the companions of Ulysses against the Ciconians, who were at one time 
allies of Priam, and who are rnentioned by Homer, Odyssey, I [rather 1 IX. 39 ff.], and Didymus 
thereon. 



Chap. III] 



On War that is Lawful or Public 



639 



cause,' also wliat was provided in the decree against King Perseus, 
should, as it seems, be understood as meaning, so long as there should 
be a war with Antiochus or Perseus, and as referring to those who 
actually had a part in this war. 



[Livy,] 
XLII 

[xxxi. 1]. 



XI. The reason why a declaration is required in order to secure certain 
effects 

Furthermore the reason why nations required a declaration 
for the kind of war which we have called lawful according to the law 
of nations was not that which some adduce, with the purpose that 
nothing should be done secretly or deceitfully, for this pertains to an 
exhibition of courage rather than to law, just as certain nations are 
said to have even appointed the date and place of battle. 1 The purpose 
was, rather, that the fact might be established with certainty that 
war was being waged not by private initiative but by the will of 
each of the two peoples or of tbeir heads. 

From this consideration arise the peculiar effects which do not 
develop in a war against brigands, nor in a war which a king wages 
against his subjects. Thus Seneca distinguishes ' wars declared upon 
neighbours, or waged with citizens '. 



On Anger, 
III. ii. 



XII. The effects referred to are notfound in other wars 

What certain writers point out and teach by citing examples, 
to the effect that even in [454] such wars what is seized belongs 
to those who take it, is indeed true, but only from one standpoint, 
that of the law of nature. It is not true by the customary law of 
nations, since this concerns nations only, not persons who have no 
existence as a nation or form a part of a nation. 

The writers in question err in this also, that they think that a 
war undertaken for the defence of one's person or property does not 
require a declaration. Such a war does require a declaration, not 
indeed of itself, but for the sake of those effects of which we have 
begun to speak, and which we shall shortly explain. 



Ayala, I. 



Alberico 
Gentili, 
II.ii[II.i], 
just cited. 



XIII. Whether war may be waged simultaneously with its declaration 

This also is not true, that war cannot be waged at once upon 
being declared. That was the procedure of Cyrus against the 
Armenians, and of the Romans against the Carthaginians, as we 

1 Just as the Romans did to Porsena, as is recorded by Plutarch in his Publicola [xvi = p. 105 c]. 
The Turks kindle a great nurnber of fires two days before a battle ; Chalcocondylas, VII [ = p. 344, 
edit. Bekker]. 

1569.27 X X 



640 On the Law of War and Peace [Booklil 

have stated above. By the law of nations, in fact, no interval of time 
is required after the declaration. Nevertheless, it may happen that, 
from the character of the afTair, by the law of nature some time may 
be required, as when restitution or punishment for a guilty person 
has been sought, and this has not been refused. In such a case time 
must be granted in order that that which has been sought may be 
properly performed. 

XIV. Whether war must be declared against him zvho has violated the 
right of embassy 

Even if the right of embassy has been violated, there will not 
cease to be need of a declaration of war, for the sake of the efTects 
of which I speak. However, it will be sufficient that this be made 
in a way in which it may be done with safety, as by means of writing, 
for example ; for custom sanctions the use of writing for both sum- 
monses and other notices to be served in unsafe places. 



[456] CHAPTER IV 

ON THE RIGHT OF KILLING ENEMIES IN A PUBLIC WAR, AND ON 
OTHER VIOLENCE AGAINST THE PERSON 

I. The effects of a public war are explained in general terms 

I. On the verse of Virgil, \on 

Aeneid, 
Then to strive in hatred, then to plunder, X. 14.] 

Will become permissible, 

Servius Honoratus, after tracing the fetial law from Ancus Martius, 
and more remotely from the Aequicoli, makes this comment : 

If at any time it happened that either men or cattle had been carried off from the 
territory of the Roman people by any nation, the pater patratus, with the fetials, that is, 
the priests who preside over the conclusion of treaties, would set out, and standing 
befoie the frontier would state the cause of war in a loud voice ; if they refused to restore 
the things that had been carried off, or to surrender the wrongdoers, he would hurl 
a spear toward them. This constituted the beginning of hostilities, and then it was 
permissible to pillage in accordance with the usage of war. 

Servius, moreover, had previously said : ' The ancients were [On 
accustomed to use the words " to innict injury (laedere res) " where x^T^i 
we say " to pillage (rapere) ", even if no crime of pillaging had been 
committed ; in like manner they used to say " to make restitution 
(res reddere) " where we say " to give satisfaction (satisfacere) 'V 

From these facts we learn that a war declared between two 
peoples, or the heads of two peoples, has certain particular effects l 
which do not arise from the nature of war itself. This conclusion, 
again, agrees excellentiy with what we have just now cited from the 
Roman jurists. 

II. A distinction is made between the word ' permissible ' as referring 
to that which is done with impunity, although not without moral 
wrong, and to that which is free from moral wrong even if virtue 
would enjoin not to do it ; with examples 

1. But let us see the import of the ' will become permissible ' in 
VirgiPs line. For sometimes that is said to be permissible which is 
right from every point of view and is free from reproach, even if 
there is something else which might more honourably be done, as 
indicated in that statement of Paul the Apostle : ' All things (that 1 Curm- 



Krantz, Saxonica, XI. v. 

X X 2 641 



thians, vi. 
17 [vi. 12], 



642 



On the Law of War and Peace 



[Book III 



[To Pol- 
Untius,] 
I. xviii. 



To Pollen- 
tius, I. xv 
[I. xiii, 
xix]. 



XVIII. 



3- 



[Insti- 
tutts,] III. 

III. 



is of the sort which he had touched upon and was going to discuss) 
are lawful for me, but not all things are expedient.' 

Thus it is lawful to contract marriage, but for a holy purpose 
the chastity of celibacy is more worthy of praise, 1 as Augustine, 
following the same apostle, wrote to Pollentius. Also to marry 
a second time is lawful, but it is more honourable to be content 
with one marriage ; this is according to the correct elucidation of 
that question by Clement of Alexandria. 2 A Christian husband may 
lawfully leave his pagan wife, as Augustine thinks 3 (this is not the 
place to discuss in what circumstances this is true), but he may also 
keep her, and so Augustine adds : ' Either course is indeed equally 
permissible according to the justice which waits upon the Lord ; 
and so [457] the Lord forbids neither of them, but each one is 
not expedient.' Ulpian says of the seller who is permitted to empty 
out wine after the appointed day : ' Nevertheless it is more praise- 
worthy if he does not empty it, when he might do so.' 

2. In another sense, however, something is said to be per- 
missible, not because it can be done without violence to right conduct 
and rules of duty, but because among men it is not liable to punish- 
ment. 4 In this sense fornication is permitted among many peoples ; 
among the Lacedaemonians and Egyptians even thieving was per- 
missible. In Quintilian we find : ' There are certain things which 
are not praiseworthy according to nature, but which are legally 



1 Tertullian, Against Marcion, I [I. xxix], says : ' The proof of abstinence is wanting if permission 
to act is taken away.' See on this point, and on the question of flight in time of persecution, the same 
author, To his Wife, Book I [I. iii]. Jerome, Against Helvidius [On Perpetual Virginity, xxi], says : 'A 
virgin is worthy of greater praise, because she despises that which she could do without sin.' [465] 
Also Against Jovinianus [I. xii] : ' Christ loves the virgins the more for this, that of their own accord 
they offer what was not demanded from them.' Again, To Pammachius [Letters, lxvi. 8] : ' Great 
things are always left to the judgment of those who dare. Constraint is not laid upon you, to the 
end that your will may attain the reward.' 

Chrysostom, On First Corinlhians, vii [Homily XIX, ii, on verse 9], declares : ' He [Paul] shows that 
chastity is preferable.' On Romans, vii. 6 [Homily XII. iv], he says : ' He has threatened us with 
Gehenna, unless we obey his commands, and he shows that the things which he demands are not among 
those which men may offer in zealous emulation, such as virginity and the renunciation of possessions, 
but those which absolutely must be fulfilled.' In his second discourse On Fasling, II [On Penitence, 
VI. iii], he says : ' He has left virginal chastity outside of the course, outside of the rules of the contest, 
that those who offer it may show the greatness of their spirits, and those who do not offer it may enjoy 
the mercy of God.' The same thought he shortly after applies to ' the renunciation of possessions '. 

Add also what Gratian has cited from Augustine and other writers in Decretum, II. xiv. 1. 

1 Slromata, IV [III. xii. 82], where, among other things, he says of the man who contracts a second 
marriap : ' H< does not indeed sin against the covenant, for there is no law to prevent him, but he 
does not accomplish the most excellent perfection of the life according to the Gospel.' 

' In De Conjugiis Adulterinis ad Pollentium, I. xiii and xix ; from these passages Gratian has 
cited at length in Decrelum, II. xxviii. 1. 

* Tertullian, in his Exhortation to Chastily [chap. viii], says : ' Permission is oftentimes the trial 

hing.' In the sarne passage : ' All things are permissible, but all things are not for lalvation.' 

Chrysostom, On Penitence, VIII [VIII. iii, ed. Migne, vol. VIII, p. 762], says : ' He who lived upon 

herbs and wild honey said with authority to him who was accustomed to have set before him a splendid 

and regal table, " This is not permissible for you." Nevertheless all things appear permissible for a king.' 

Columella, in the prtl k VII [On Farming, I. vii. 2], declares : ' We must not assert 

^ht tO whatever ble, for the ancients held that the extreine enforcemenl "1 right is 

extreme cruelty.' Jerome, To Jovinianus [To Innocentius, Letters, i. 14], says : ' The extreine inmtence 
ht is the extreme of wickedness.' 



Chap. IV] 



On the Right of killing Enemies 



643 



Consider not what you may do, but that of which the doing will honour bring. 

Musonius rebukes those kings ' who are in the habit of saying, " This 
is permissible for me ", not " This is right for me ".' 

3. In this sense we often see what is permitted contrasted with 
what is right. Such a contrast is presented by Seneca the Father * 
more than once in his Controversies. Ammiajius Marcellinus says : 
' There are some things which it is not right to do, even if it is 
permitted.' With this accords what Pliny says in his Letters : ' It 
is right to avoid what is dishonourable, not as being not permissible, 
but as being shameful.' 

Cicero, again, in the speech For Balbus, has this : ' For there 
is something which is not right, even if it is permitted.' In the 
speech For Milo he refers the standard of right (fas esse) to nature, 
and the standard of what is permissible (licere) to the laws. In 
a declamation of Quintilian the Father there is a saying that it is 
one thing to have regard to rights, and another to have regard to 
justice. 



[V. xix. 
55.3 



permissible ; thus according to the Twelve Tables it was permitted 
to divide the body of the debtor among his creditors.' 

This, however, is hardly a proper meaning of the word ' per- 
mitted ' in the strict sense, as Cicero rightly observes in his Tusculan 
Disputations, Book V. Here, speaking of Cinna, he says : ' To me, 
on the contrary, he seems wretched not only because he did this, 
but also because he so conducted himself that it would be permissible 
for him to do it. Although it is not permissible for any one to do 
wrong, still we are misled by an error of speech ; for we say that 
that is permitted which each one is allowed to do.' This is, never- 
theless, an accepted meaning, as shown by Cicero's address to the 
judges in his plea For Rabirius Postumus : ' You should have regard [v. n.] 
to what becomes you, not merely what is permissible for you ; for 
if you seek only what is permitted you may remove from the state 
whomsoever you wish.' 

Similarly it is said that for kings all things are permitted because 
they are ' not liable to be held accountable ', that is, they are beyond 
the reach of human punishments, as we have said elsewhere. But 
for the instruction of a king, or an emperor, Claudian rightly says : 



[On the 
Fourth 
Consulship 
of Hono- 
rius,26ji.] 

[In Sto- 
baeus, 
xlviii. 14.] 

Ammia- 
nus, XXX 

[viii. 8]. 

Pliny, 
V [xiii]. 



[iii. 8.] 
[xvi. 43.] 



III. The effects of a public war in general are concerned wiih fer- 
mission that grants impunity 

With this restriction, therefore, it is permitted to harm an 
enemy, both in his person and in his property ; that is, it is per- 



In his Controversies, IV. xxiv [=VII. viii. 1], and elsewhere. 



6 4 4 



On the Law of War and Peace 



[Book III 



[On Public 
Adminis- 
traiion, ad- 
dressed to 
Caesar, II. 



War, 
I. xxxv.] 



XXXIX 



missible not merely for him who wages war for a just cause, and who 
injures within that limit, a permission which we said at the beginning 
of this book was granted by the law of nature, but for either side 
indiscriminately. 

As a consequence, he who happens to be caught in another's 
territory cannot for that reason be punished as a murderer or a thief, 
and war cannot be waged upon him by another on the pretext of 
such an act. With this meaning we read in Sallust : ' To whom in 
the hour of victory all things were permitted by the law of war.' 

IV. Why such effects have heen introduced 

The reason why such effects met with the approval of nations 
was this. To undertake to decide regarding the justice of a war 
between two peoples had been dangerous for other peoples, who 
were on this account involved in a foreign war ; just so the Massilians 
said, in relation to the struggle between Caesar and Pompey, that 
it was not within the province of their judgement or their power 
to determine which party had the juster cause. Furthermore, even 
in a lawful war, from external indications it can hardly be adequately 
known what is the just limit of self-defence, of recovering what is 
one's own, or of inflicting punishments ; in consequence it has seemed 
altogether preferable to leave decisions in regard to such matters to 
the scruples of the belligerents rather than to have recourse to the 
judgements of others, The Achaeans in their speech to the Senate, 
as recorded by Livy, -said : ' In what way do those things which 
have been done in accordance with the law of war [458] come 
under discussion ? ' 

In addition to this efTect of permissibility, that is of impunity, 
there is another, that of ownership, which we shall discuss later. 



V. Testimony regarding these effects 

1. Moreover that licence to injure, which we have now begun 
to consider, extends in the first place to persons ; in regard to it 
there are many evidences in writers of authority. There is a Greek 
proverb from a tragedy of Euripides : * 

Pure are all they who shed the blood of foes. 

According to an ancient custom of the Greeks it was not lawful to 
bathe, to eat or drink, and much less to perform sacred rites, in 
company with those who had slain a man in time of peace ; but to 
do so with those who had killed in war was right. 



lon [line 1334]. 



Chap. IV] 



On the Right of killing Enemies 



645 



In general, killing is called a right of war. Says Marcellus in 
Livy : ' Whatever I have done to the enemy is defended by the law 
of war.' In the same writer Alco says to the men of Saguntum : 
' But I think that you ought rather to endure these things than to 
sufTer your bodies to be butchered, your wives and children to be 
seized and dragged off before your faces in accordance with the law 
of war.' Again, in another passage, after telling of the slaughter of 
the Astapenses, Livy adds that this was accomplished in accordance 
with the law of war. 

In his speech For Deiotarus, Cicero says : ( Why should he be 
your enemy, when he remembered that he and his son had been 
made kings by you, who would have been justified by the law of 
war in killing him ? ' Also, in the speech For Marcus Marcellus : 
( For although by the terms of victory itself you might lawfully have 
slain us all, we were preserved by the mercifulness of your judge- 
ment.' Caesar informed the Aeduans * That those through his 
kindness had been preserved whom according to the law of war he 
could have put to death '. Josephus says in his Jewish War : ( It is 
a noble thing to die in war, but by the law of war, that is, at the 
hands of the victors.' Papinius [Statius] has this : 

And we mourn not the fallen ; such are the rights of war x 
And hazards of arms. 

2. However, it is clear from other passages that when these 
writers say ( by the law of war ' we must not understand such a law 
as would free what is done from all blame, but such immunity from 
punishment as I have mentioned. Tacitus says : ( In peace we con- 
sider causes and deserts ; when war breaks out, innocent and guilty 
fall together.' The same author elsewhere has this : ( Human justice 
would not permit them to approve such slaughter, nor the principles 
of warfare to avenge it.' 

In no other sense should we understand the right of war which, 
according to Livy, the Achaeans refrained from availing themselves 
of against Aeneas and Antenor because these had always been advocates 
of peace. Seneca, in his tragedy the Trojan Women, says : 

Whate'er he will, 'tis permitted the victor to do. 

In his Letters, also : ' Deeds which they would atone for with their 
lives if committed in peace, we praise them for having done under 
arms.' 2 

Cyprian declares : ( Murder committed by individuals is a crime ; 



xxvi 

[xxxi. 2]. 



[ix. 25. 



[iv. 12.] 



[I. i. 1.] 
[335.] 



1 Servius, On the Aeneid, II [II. 538], in the Fuldensian excerpts : ' In accordance with the law 
of war Pyrrhus had slain Polites ; but why before his father's eyes ? ' Spartianus, in his Life ofSeptimius 
Severus [chap. xiv]. writes : ' In addition to those whom the law of battle destroyed.' 

2 Cf. II. i. 1, above. 



646 



On the Law of War and Peace 



[Book III 



Div. Inst., 

IV. ix 

Pharsalia, 

I 



XXXVII 

WIII. 
xlviii. 9] 
and nu- 
merous 
other pas- 
sages. 



;III. ii. 7.] 



On Dig. 

I.i.5- 



when accomplished by public authority it is called a virtue. Wicked 
deeds acquire immunity not on the plea that they are void of guilt 
but because their ruthlessness is on a grand scale.' Later he adds : 
1 The laws have come to terms with crimes ; whatever is public 
begins to be permissible.' Similarly Lactantius says that the Romans 
in accordance with law inflicted injuries. And in the same sense 
Lucan speaks of ' right given over to crime '. 

VI. Out of this right arises the right to kill and injure all who are in 
the territory of the enemy 

Furthermore, this right of doing what is permissible has a wide 
application. In the first place it extends not only to those who 
actually bear arms, or are subjects of him that stirs up the war, but 
in addition to all persons who are in the enemy's territory. This is 
made plain by that very formula in Livy : ' Let him be accounted 
an enemy, and those who are within his defences.' The reason is that 
injury may be feared from such persons also ; and this is suflicient, 
in a prolonged and general war, to give rise to the right which we 
are discussing. 

The situation is different from that which arises from the taking 
of guarantees, which, as we have said, originated in the manner of 
the impositions levied for the payment of the debts of a state. 
Therefore, as Baldus notes, it is no wonder that much [459] more is 
permissible in war than in the exacting guarantees. 

At any rate what I have said is beyond all dispute true of 
foreigners who enter hostile territory after a war has commenced 
and they are aware of it. 



Thucy- 
dides, 



VII. What is the situation in case foreigners have entered a country 
before the outbreak of war ? 

But foreigners who have gone to a country in a period prior to 
the war, after the lapse of a moderate time, 1 in which they could 
have departed, are apparently to be regarded as enemies according 
to the law of nations. Accordingly the Corcyreans, who were going 
to blockade Epidamnus, first gave to the foreigners an opportunity 
of leaving the city, telling them that if they should remain they 

ld be regarded as enemies. 



1 Ben thu principJfl in his speech For Liz,arius [ii. 4]. 

;ive an exarnplc in Li . \ V [XXV. xxii. 11], with regard to the citizens of Campania. 

Others 1 ies, Books I and V [IV. cvj. 



Chap. IV] 



On the Right of killing Enemies 



647 



VIII. The right to inflict injury extends to subjects of enemies any- 
where, unless the law of the foreign territory prevents it 

1. Now those who are truly subjects of the enemy, that is to 
say from a permanent cause, may in respect to their persons be 
lawfully injured in any place whatsoever, according to the law of 
nations. For when war is declared upon any one it is at the same 
time declared upon the men of his people, as we showed before in 
the formula of declaration ; so also in the proposal for voting : ' Did 
they wish, did they command, that war be declared upon King 
Philip and the Macedonians who were under his rule? ' 

Moreover, according to the law of nations, any one who is an 
enemy may be attacked anywhere. As Euripides says : 

The laws permit to harm a foe where'er he may be found. 

Marcianus the jurist says : c It is permissible to slay deserters, just 
the same as enemies, wherever they may be found.' 

2. Such persons therefore may be slain with impunity in their 
own land, in the land of an enemy, on land urider the jurisdiction 
of no one, or on the sea. The fact that it is not permissible to slay 
or injure such persons in territory which is in a state of peace is 
based on a right derived not from their persons but from the right 
of him who exercises sovereignty there. 1 For political societies were 
able to agree that no violent measures should be taken against persons 
who are in territory at peace except by recourse to legal proceedings ; 
of such purport is the passage from Euripides which we have already 
quoted : 

If some charge against these guests you prove, 
Justice you shall obtain ; by violence 
You shall not drag them hence. 

Where tribunals exist regard is had to the deserts of individuals, 
and that promiscuous right of inflicting injury, which we say arises 
as between enemies, there ceases. Livy 2 records that seven Cartha- 
ginian ships of war were in a harbour that fell under the authority 
of Syphax, who at that time was at peace with the Carthaginians 
and the Romans. Scipio came to the harbour with three ships of 
war, which might have been sunk by the Carthaginians before they 
entered the harbour ; but a strong wind brought them into port 



Livy, 
XXXI 
[vi. 1]. 



[frag. 
1076.] 



[Children 
o/Her- 
cules, 
251 ff., 
cited 
above in 
II. xxi. 6. 



1 Compare what we have to say below, III. vi. [466] 26, and Alberico Gentili, Hispanica Advo- 
catio, I. vi ; Wechner, Consilia Franconica, xcii. 

2 For a similar act of the Venetians, who prevented the Greeks from injuring Turks in a port under 
Venetian jurisdiction, see Chalcocondylas, IX [IX = p. 478] ; with regard to the Venetians and Turks 
at Tunis, Bembo, IV ; with regard to the Pisans and Genoese in Sicily, Bizarri, On the Pisan War ; and 
with regard to Rostock and Greifswald, Paulinus of Gotha. 



6 4 8 



On the Law of War and Peace 



[Book III 



before the Carthaginians weighed anchor. Then, in fact, the Cartha- 
ginians did not dare to make any attack in the port since it belonged 
to the king. 

IX. The right to inflict injury extends even over infants and women 

i. But to return to the point under consideration : How far 
this right to inflict injury extends may be perceived from the fact 
that the slaughter even of infants and of women is made with 
impunity, and that this is included in the law of war. 

I shall not urge, in support of this statement, that the Jews 
killed the women and children of the Hesbonites, and that they were 
commanded to execute a like vengeance upon the Canaanites and 
those who were allied with the Canaanites l ; for these are the works 
of God, whose right over men is greater than that of men over 
brutes, as we have explained elsewhere. Of greater pertinence, as 
evidencing the common practice of nations, is the fact that in the 
Psalms it is said that he will be happy who dashes the infants of 
the Babylonians against a rock. This is paralleled by the saying 
of Homer : 2 

Bodies of infants dashed upon the ground, 
While ruthless war all things afrYights. 

[460] 2. In ancient times, as Thucydides relates, upon 
capturing Mycalessus the Thracians slew both women and children. 
Arrian records the same of the Macedonians when they had taken 
Thebes. After Ilurgia, a city in Spain, had been captured,^ the 
Romans * slew alike both children and women ', to use the words 
of Appian. 

Tacitus records that Germanicus Caesar laid waste the villages 
of the Marsi, a people of Germany, with fire and sword, and adds : 

ither sex nor age found mercy.' Titus even exposed Jewish 
children and women to be slaughtered by wild beasts in a public 
spectacle. And yet these two men are believed to have been by no 
means cruel in disposition to such an extent had cruelty of this 



1 Like the Amalekites, of whom Josephus, in relating the history of Saul, VI. viii [Antiquities of 
the Jews, VI. vii. 2J writes : ' He proceeded to slay even women and children, considering that in this 
he was doing nothing cruel or contrary to human nature, first because those to whom he did it were 
enemies,' &c. 

* Severus, threatening the Britons, cited [in Xiphilinus, LXXVI. xvl these words from the same 
Homer [lliad, VI. 58] : 

Nor will he cruel fate escape, 
Who still lies hidden in his mother's womb 

after the capture of Numantia ; the soldiers of Julian, who llew the women that had 
been left at Dacira, Zosimus. III [III. xv]. Ammianus in Book XIV [XXIV. Iv. 5] tayt that aftei 

ane Julian had taken Majozamaltha ' the violenct of the enraged soldiery slew whatever they 
met in their onset without disl < 1 



Chap. IV] 



On the Right of killing Enemies 



649 



sort become a custom. It is, then, less surprising if old men too Aeneid, 11 
are killed, as Priam by Pyrrhus. [550 ff.]. 

X. Tbe right to inflict injury extends even over captives, and wiihout 
limitation of time 

1. Not even captives are exempt from this right to inflict 
injury. 1 In Seneca Pyrrhus says, in accordance with the accepted 
custom of the time, 



No law the captive spares or punishment restrains. 

In the Ciris, attributed to Virgil, such is said to be the law of war, 
even against captive women ; Scylla there speaks thus : 

But by the law of war a captive you had slain. 

Also in the passage cited from Seneca the killing of a woman, Polyxena 
in fact, was under discussion. This practice gave rise to that saying 
of Horace : 

When you can sell a prisoner, slay him not ; 

for the words imply the postulate that it is permissible to kill a captive. 

Donatus says that those were called slaves (servi) who had been 
saved (servati), ' when by the law of war they could have been killed '. 
Thus the captives from Epidamnus were slain by the Corcyreans, as 
Thucydides relates. Thus five thousand prisoners were put to death 
by Hannibal. In the African War of Hirtius a centurion of Caesar 
thus addresses Scipio : ' I thank you for having promised life and 
safety to me, although a captive by the law of war. 5 

2. So far as the law of nations is concerned, the right of killing 
such slaves, that is, captives taken in war, is not precluded at any 
time, although it is restricted, now more, now less, by the laws 
of states. 



Trojan 
Women 
[3331- 



[447- 



[On 

Terence's] 
A delphi, 
II. i [128]. 
I [xxx]. 
Appian, 
Hann. Wars 
|"iii. 14]. 
Dio Cass., 
XLVII 
[xlviii]. 
[Hirtius, 
African 
War, xlv.] 



XI. The right to inflict injury extends even over those who wish to 
surrender, but whose surrender is not accepted 

Furthermore we meet with frequent examples of the slaughter 
of suppliants, as by Achilles in Homer, and in Virgil the cases of 
Mago and Turnus. These instances of the killing of suppliants, we 
see, are related in such a way that they are defended by the law of 

1 In Josephus [Antiquities ofthe Jews, IX. iv. 3] Elisaeus ' said that it was right to slay those who 
had been made prisoners by the law of war '. And so Virgil [Aeneid, X. 524 f.] introduces a prisoner 
who utters the prayer : 

By the shades of thy sires, by thy hope in the youthful Iulus, 
Preserve, I beseech thee, this life to my son and my sire. 

Wittekind, Book II [III, p. 34], relates that Otho put to death 70,000 [700 in Wittekind's text] Slavs 
who had been made prisoners. 



650 



On the Law of War and Peace 



[Book III 



City of 
God, I. ii 

[i. q. 



Annals, 

XII 



. II 
:. 6]. 
Dion., 
XLV 

XI. III. 

[Dio Cas- 
sius, XL. 
xii.] 

[V. xxx. 

77-1 

VI. 
xiii. 15.] 
XII. xix/j 

Historics, 
I [xxxvii]. 

.' ries, 
I. lxviii.] 



war of which I have spoken. In fact, Augustine also, when praising 
the Goths, who had spared suppliants and those that had taken 
refuge in temples, says : ' What would have been permissible by the 
law of war they judged was not permissible for them.' 

Again, the surrender of those who give themselves up is not 
ahvays accepted. Such was the case of the Greeks who fought in 
the service of the Persians at Granicus ; in Tacitus is another instance, 
that of the Uspenses, who sought pardon for their freemen : ' Their 
plea the victors rejected ', he says, ' that they might rather perish 
by the law of war.' Note here also the expression * the law of war '. 

XII. The right to inflict injury extends even over those who have 
surrendered unconditionally 

But you may read also that captives, whose unconditional sur- 
render was accepted, have been put to death, 1 as the rulers of 
Pometia by the Romans ; Samnites, by Sulla ; Numidians, and 
Vercingetorix himself, by Caesar. 

There was indeed almost a permanent custom among the Romans 
with respect to the commanders of the enemy, whether captured or 
received by surrender, that they should be put to death on the day 
of the Roman triumph. 2 So Cicero informs us in his fifth oration 
Against Verres, Livy both in Book XXVIII and elsewhere, Tacitus 
in his Annals, Book XII, and many other authors. As Tacitus 
also relates, Galba ordered the decimation of those whom he had 
received under his protection as suppliants ; and Cecinna, after 
receiving the surrender of Aventicum, punished Julius Alpinus, one 
of the foremost men, as the instigator of the war, and left the rest 
to the mercy, or savagery, of Vitellius. 



[461] XIII. // is incorrect to refer this right to other causes, as 
retaliation, or obstinacy of defence 

1. Sometimes historians assign the reason for the slaughter of 
enemies, particularly of captives or suppliants, either to retaliation, 
or to obstinacy in resisting ; 3 but these causes, as we have indicated 
elsewhere, are plausible rather than justificatory. In fact, retaliation 
that is lawful, and properly so called, must be inflicted upon the very 
person who has done wrong, as may be seen from what has previously 
been said on the sharing of punishment. 

In war, on the contrary, what is called retaliation very frequently 
brings harm to those who are in no wav to blame for that on which 



XX [LXX. xvii], on the year 1580, with regard to events in Ireland. 
1 There is a similar occurrence in the Chronicle of Regino for the year 905. 
' As<: III. 



Chap. IV] 



On the Right of killing Enemies 



651 



the issue is joined. The point of view is thus set forth by Diodorus 
Siculus : ' Having learned from actual experience, since the hazard 
of war is the same for all belligerents, they were not unaware that 
either side if defeated must expect to receive the treatment which it 
would have accorded to the vanquished.' In the same author Philo- 
melus, leader of the Phocians, ' made the enemy cease from their 
insolent and cruel punishment by inflicting an equivalent penalty '.* 

2. In truth there is no one who holds that an obstinate devotion 
to one's party is worthy of punishment ; this is illustrated by the 
reply of the Neapolitans to Belisarius, in Procopius. Thc statement 
holds particularly true when the party to which allegiance is main- 
tained has been assigned by nature, or chosen. for an honourable 
reason. 

In fact, so far from there being any crime involved in such 
allegiance, it is accounted a criminal act to desert one's post. This 
was insisted on especially in the military law of ancient Rome, which 
in such cases hardly admitted any excuse of fear or danger. ' Among 
the Romans to leave one's post is a capital crime ', says Livy. For 
his own advantage, therefore, each one resorts to so extreme severity 
in cases in which it seems expedient ; moreover, such severity is 
defended among men by the law of nations, of which we are now 
treating. 



[XIV. 
xlvi.] 



[XVI. 
xxxi.] 



Gothic 
War, I 

[viii]. 



XIV. The right to inflict injury extends over hostages also 

This right to inflict injury has also been exercised against 
hostages, not merely against those who had bound themselves, as by 
an agreement, but also against those who have been surrendered by 
others. In ancient times two hundred and fifty hostages were put 
to death by the Thessalians ; and hostages of the Volsci Aurunci, to 
the number of three hundred, by the Romans. 

Furthermore we must remember that even boys were commonly 
given as hostages ; we read that this was done by the Parthians and 
by Simon, one of the Maccabees. Women also were given as hostages 
by the Romans in the time of Porsena, and by the Germans, according 
to Tacitus. 

XV. By the law of nations it is forbidden to kill any one by means 
of poison 

1. However, just as the law of nations, through that form of 
permission which we have now explained, permits many things which 



1 See the same Diodorus on Spondius and Hamilcar Barca in the Excerpta Peiresciana [Excerpta 
de Virlutibus et Vitiis, i = p. 262]. 



652 



On the Law of War and Peace 



[Book III 



XLIl 

Gildo 

[274]- 

On Dutxes, 

III >3rii. 

86]. 
[Attic 

Mghts,} 

III. i 

VI. v. 1]. 
Annals, 

III II. 
Ixxx-. 



II. 188. 



are forbidden by the law of nature, so it forbids certain things which 
are permissible by the law of nature.' If you take account only of 
the law of nature, in case it is permissible to kill a person, it makes 
no dirference whether you kill him by the sword or by poison. By 
the law of nature, I repeat, for it is indeed more noble to kill in such 
a way that he who is killed may have a chance to defend himself ; 
but this is not an obligation due to one* who has deserved to die. 
Xcvertheless from old times the law of nations if not of all nations, 
certainly of those of the better sort has been that it is not permissible 
to kill an enemy by poison. 

reement upon this matter arose from a consideration of the 
common advantage, in order that the dangers of war, which had 
begun to be frequent, might not be too widely extended. And it 
is easy to believe that this agreement originated with kings, whose 
lives are better defended by arms than those of other men, but are 
less safe from poison, unless they are protected by some respect for 
law and by fear of disgrace. 1 

2. In speaking of Perseus Livy calls the poisoning of enemies 
secret crimes. Claudian, in discussing the plot against Pyrrhus which 
was rejected by Fabricius, characterizes it as impious, and Cicero, 
touching on the same story, refers to it as an atrocity. From the 
point of view of an example for all, it is important that no such 
deed be done, say the Roman consuls [462] in the letter to Pyrrhus 
which Gellius quotes from Claudius Quadrigarius. In Valerius 
Maximus is the saying, ' Wars ought to be waged with weapons, not 
with poisons.' 

Tacitus records that, when the leader of the Chatti offered to 
bring about the death of Arminius by poison, Tiberius refused the 
ofler, by this glorious act placing himself on a level with the generals 
of olden days. Wherefore those who argue that it is permissible to 
kill an enemy by poison, 2 as does Baldus, following Vegetius, have 
regard to the law of nature only ; they quite overlook that which 
takes its rise in the will of the nations. 



M the 
i5ff-] 



XVI. By the law of nations it is forbidden to foison weapons or waters 

1 . DifTerent in a degree from poisoning of this sort, and more 
closely allied with the use of force, is the poisoning of javelins. This 
is a doubling of the causes of death which Ovid relates of the Getae, 3 

1 The senators [the Consuls, rather] wrote to Pyrrhus : ' that if anything should hefall you it may 
trny upon h, Fyrrhus, xxi=p. 396 c]. 

-ee Bembo, Book III, end. 
iiiny, [Natural History,] XI. liii, observes : ' The Srythians foul their arrows 
with the poison of vipers and human blood ; this wickedness, for which no remedy can be found, 
produces death at once by a light touch.' On the Serbians see Helmold, Suf<f>ln>unt, chap. iv. 



Chap. IV] 



On the Right of killing Enemies 



653 



Lucan of the Parthians, Silius of certain of the Africans, and Claudianus 
of the Ethiopians in particular. But this also is contrary to the law 
of nations, 1 not indeed of all nations, but of European nations, and 
of such others as attain to the higher standard of Europe. 

John of Salisbury has rightly stated the principle in these words : 
' I do not read that it is permissible under any law to use poison, 
although I see that poisoning is sometimes resorted to by unbelievers.' 
Of like implication are the words of Silius, ' To disgrace iron with 
poison.' 

2. The poisoning of springs also, though the act either is not 
secret or does not long remain so, is said by Florus to be not only 
contrary to ancestral custom but also contrary to the law of the 
gods ; just as we have pointed out elsewhere, writers frequently 
ascribe the laws of nations to the gods. It should not indeed seem 
remarkable if there exist some such tacit agreements among belli- 
gerents to lessen the risks of war, when in olden times the Chalcidians 
and Eretrians, while at war, covenanted ' not to make use of missile 
weapons \ 



II [xxl 



[II. xix. 

1.2.] 



XVII. It is not forbidden by the law of nations to pollute waters in 
another way 

The rule just stated has not been established in regard to the 
pollution of waters without the use of poison, 2 in such a way that 
one cannot drink from them. Such pollution, we read, Solon and 
the Amphictyons considered lawful against barbarians ; and according 
to Oppian, in his On Fishing, Book IV, it was customary in his 
time. This is considered to be like the diverting of a river, or cutting 
off the ve.ins of a spring, 3 which is permissible by nature and by 
convention. 

XVIII. Whether or not the use of assassins is contrary to the law of 
nations 

1. The question is frequently discussed whether, according to 
the law of nations, it is permissible to kill an enemy by sending an 
assassin against him. 

In general a distinction must be made between assassins who 
violate an express or tacit obligation of good faith, as subjects resorting 
to violence against a king, vassals against a lord, soldiers against him 



Pausanias, 
ult. [X. 
xxxvii] 
Frontinus, 
[Strata- 
gems,] III 
[vii. 6] : 
Aeschines, 
On the 
Badly . 
Conducted 
Embassy 
[cxv]. 
[Halieu- 
tica, IV. 
687 f.] 



1 And so Ilus, the son of Mermerus, refuses Ulysses poison for his spears, Odyssey, I [I. 263] : 

[467] Fearing the wrath of the immortal gods. 

2 With corpses, or with asbestos, which Belisarius used in the siege of Auximium, Procopius, 
Gothic War, II [II. xxvii] ; or with lime, as the Turks at Dibra, Nicetas, On Alexis, I [I. vii], brother 
of Isaac [Comnenus]. Similar acts are related by Otto of Freising, and Gunther, Ligurinui. 

3 See Priscus, Seleclions on Embassies [p. 29]. 



654 



On ihe Law of War and Peace 



[Book III 



xxxi.] 



III. iii 
i. i]. 

48.] 



Justin, II 
>i.i 5 ]. 

XXVII 
[xxvii] . 
Tacitus, 
Histories, 
V [xxii]. 
On Duties, 
I. xl [197]. 



;..l 4 ]. 



Digest, 
III. 
v 6. 



whom they serve, those also who have been received as suppliants 
or strangers or deserters, against those who have received them ; 
and such as are held by no bond of good faith. In the latter class 
is Pepin, 1 the father of Charlemagne, who, accompanied by one 
attendant, is said to have crossed the Rhine and to have slain an 
enemy in his bedchamber ; a similar deed was attempted upon 
Ptolemy of Egypt, and Polybius, attributing it to Theodotus the 
Aetolian, calls it ' a manly deed of daring '. 

Of such a character was also the attempt of Quintus [Gaius] 
Mucius Scaevola, 2 celebrated by historians, which he himself defended 
thus : ' As an enemy I wished to slay an enemy.' Porsena himself 
>aw nothing but bravery in this deed. Valerius Maximus calls it an 
attempt free from reproach and brave ; and Cicero also praises it 
in his speech For Publius Sestius. 

2. Not merely by the law of nature but also by the law of 
nations, as we have said above, it is in fact permissible to kill an 
enemy in any place whatsoever ; and it does not matter how many 
there are who do the deed, or who suffer. Six hundred Spartans 
with Leonidas entered the hostile camp of the enemy and made 
straight for the tent of the king. The same venture would have 
been permissible for a smaller number. 3 Those were few in number 
who from an ambuscade surrounded and slew the consul Marcellus ; 
and few likewise were those who all but stabbed Petilius Cerialis in 
his bed. [463 ] Ambrose praises Eleazer 4 for attacking an elephant 
which towered above the rest, in the belief that the king was seated 
thereon. 

According to the law of nations not only those who do such 
deeds, but also those who instigate others to do them, are to be 
considered free from blame. Scaevola was incited to his daring deed 
by those Roman senators of old, who were so scrupulous in warfare. 

3. No one ought to be influenced by the fact that when persons 
who have made such attempts are caught they are usually subjected 
to refined tortures. This result does not follow because they have 
violated the law of nations, but because, by that same law of nations, 
anything is permissible as against an enemy. In such cases, however, 
each decides upon a more severe or more lenient punishment from 
the point of view of his personal advantage. 



:.efrid [Paulus Diaconus], VI [VI. xxxvii]. 
2 Who is, in Plutarch [Publicola, xvii = p. 106 B], ' a man pre-eminent in all virtue '. 
' \ ^ed a monetary reward to any one who should have brought in the head of a Scy thian. 

Thus peace wus - / limus, IV [IV. xxii]. 

: 'hus Anliquilies of the Jeivs, XV. xiv [XII. ix. 4]. A similar act of Theodosius against 

Eugen, . I\' [ IV. Kiii] ; of th( I linst the Persian king, in Agathias ; 

Julian, in Anunianus, XXIV [XXIV. iv. .}], and Zosimus, III |III. xx]; of 

AJexius Comnenu Nicetas of Chonae, On Manuel, IV [IV. iv] ; and of the Bulgars 

against the Emperor Nicephorus, in Zonaras [XV. xv]. 



Chap. IV] 



On the Right of killing Enemies 



655 



Under these conditions spies, whose sending is beyond doubt 
permitted by the law of nations such as the spies whom Moses sent 
out, or Joshua himself if caught are usually treated most severely. 
1 It is customary ', says Appian, ' to kill spies.' Sometimes they are 
treated with justice by those who clearly have a just care for carrying 
on war ; by others, however, they are dealt with in accordance with 
that impunity which the law of war accords. If any are to be found 
who refuse to make use of the help of spies, when it is offered to 
them, 1 their refusal must be attributed to their loftiness of mind 
and confidence in their power to act openly, not to their view of 
what is just or unjust. 

4. But a different point of view must be adopted in regard to 
those assassins who act treacherously. Not only do they themselves 
act in a manner inconsistent with the law of nations, but this holds 
true also of those who employ their services. And yet, in other 
things those who avail themselves of the aid of bad men against an 
enemy are thought to sin before God, but not before men ; that is, 
they are thought not to commit wrong against the law of nations, 
because in such cases 

Custom has brought law beneath its sway ; 

and ' to deceive ', as Pliny says, ' in the light of the practices of the 
age, is prudence '. 

Nevertheless the warrant of custom in such cases does not extend 
to the right of killing ; for he who makes use of another's treachery 
in causing death is believed to have violated both the law of nature 
and the law of nations. This is apparent from the words of Alexander 
to Darius : ' You are waging an unrighteous war ; and, although 
you have arms, you set a price on the heads of your enemies.' Later 
he says : ' You who have not even observed the laws of war towards 
me.' In still another passage : ' I must pursue him to the death, 
not as a just foe, but as an assassin and a poisoner.' 

Of similar purport is the statement concerning Perseus : ' He 
was not undertaking a just war with the spirit of a king, but was 
making his attacks by means of all the secret crimes of robbers and 
poisoners.' In treating these same deeds of Perseus, Marcius Philippus 
said : ' In the ruin of his fortunes he will perceive how hateful all 
his acts are to the gods also.' Here, again, the statement of Valerius 
Maximus applies : ' The slaying of Viriathus 2 produced a twofold 

1 See Kromer, [Book V,] p. 113. 

2 The author of De Viris lllustribus [Aurelius Victor, lxxi] says : ' This victory, because it had 
been purchased, was not approved of by the Senate.' Eutropius [IV. xvi] says : ' When his murderers 
sought the reward from the consul Caepio, they received the reply that the Komans never approved of 
a general being killed by his own troops ' ; perhaps one should read ' the reward promised by the 
consul Caepio ' . Similarly the assassination of Sertorius is condemned by Ammianus, XXX [XXX. 
i. 23]. 

1569.27 Y y 



Punic 
Wars 

[xxxix] . 



[Plautus, 

Trinum- 

wms,io37."J 

Letters, 

VIII 

[xviii. 3], 

To Rufinus 



Curtius, 
IV [i. 
12-13]. 

XIV [IV. 
xi. 18]. 



Livy, 
XLII 

[xviii. 1]. 



Livy, 
XLIV 

[i. 10]. 
IX. vii 

[IX.vi.4]. 



656 



On the Law of War and Peace 



[Book III 



Justin, 



XII v 

ioff.]. 



[Oedipus 
the King, 

Mi.] 



[Oedipus, 
242.] 

[Gellius, 
III. viii.] 



Annals, 

XI >ix]. 

VII v. 
20]. 



charge of treachery : against his friends, because he was killed by 
their hands ; against Quintus Servilius Caepio, the consul, because 
he was the instigator of the crime by his promise of immunity, and 
did not earn his victory, but purchased it.' 

5. The reason why in this matter men have reached a con- 
clusion difFer,ent from that adopted in other cases is the same that 
we advanced above with regard to the use of poison. It has in view 
the purpose to prevent the dangers to persons of particular eminence 
from becoming excessive. According to Justin, Eumenes declared 
that ' he did not believe that any general wished to conquer by such 
means that he would set a very bad example against himself '. 

In Justin, again, the murder of Darius by Bessus is said to be 
an example and a cause common to all kings ; and, in Sophocles, 
Oedipus, when about to avenge the death of King Laius, says : 

Then in avenging him I serve myself. 

Likewise in Seneca's tragedy on the same theme : 

Kings, above all, king's safety must protect. 

The Roman consuls wrote in a letter to Pyrrhus : ' It seemed an 
example of good faith for all that we should desire your safety.' 

6. In a public war, therefore, or among those who [464] have the 
right to declare a public war, the practice under consideration is not 
permissible ; however, apart from a public war, by the same law of 
nations it is held to be permissible. Accordingly, Tacitus does not 
admit that a plot of this sort laid against the renegade Gannascus 
was degrading. 1 Curtius says that the treachery of Spitamenes could 
seem less hateful, since no one thought anything wicked that was 
done against Bessus, who slew his king. So, too, treachery towards 
robbers and pirates is not indeed blameless, but goes unpunished 
among nations by reason of hatred of those against whom it is 
practised. 



XIX. Whether rape is contrary to the law of nations 

1. You may read in many places that the raping of women in 
time of war is permissible, and in many others that it is not per- 
missible. Those who sanction rape have taken into account only the 
injury done to the person of another, and have judged that it is not 



1 Thus Ammianus [XXVI. ix. 10] says of Florentius and Barchalba, who handed over the rebel 
Procopius : ' If they had betrayed a legitimate prince, justice itself would have declared that they 
could have been rightly killed ; but if they had betrayed a rebel and an opponent of peace within 
the state, as it was said, they should have received a rich reward for the memorable deed.' So Arta- 
banes is praised for th< .ntharides. in the historian Procopius, Vandalic War, at the end of 

Book II [II. xxviii]. Compare Kromer, Book XXVI II [p. 604], on the killing of Sechodolius. 



Chap. IV] 



On the Right of killing Enemies 



657 



inconsistent with the law of war that everything which belongs to 
the enemy should be at the disposition of the victor. A better 
conclusion has been reached by others, who have taken into con- 
sideration not only the injury but the unrestrained lust of the act ; 
also, the fact that such acts do not contribute to safety or to punish- 
ment, and should consequently not go unpunished in war any more 
than in peace. 

The latter view is the law not of all nations, but of the better 
ones. Thus Marcellus, before capturing Syracuse, is said to have 
taken pains for the protection of chastity, 1 even in the case of the 
enemy. In Livy, Scipio says that it is a matter of concern for himself 
and for the Roman people ' that they should not violate what is 
anywhere held sacred '. ' Anywhere ', that is to say, among the 
more advanced peoples. Diodorus Siculus says of the soldiers of 
Agathocles : ' They did not abstain from insults and lawlessness 2 
towards women.' Aelian, having related that the chastity of the 
women and girls of Pellene was violated by the victorious Sicyonians, 
exclaims : ' These are most brutal acts, ye gods of Greece, and not 
held honourable even among barbarians, so far as my memory serves.' 

2. Among Christians 3 it is right that the view just presented 
shall be enforced, not only as a part of military discipline, but also 
as a part of the law of nations ; that is, whoever forcibly violates 
chastity, even in war, should everywhere be subject to punishment. 
No one could have committed such an act with impunity under the 
Hebraic law, as may be perceived from that part which deals with 
the taking of a woman 4 captive and not subsequently selling her. 
On this passage the Jewish rabbi Bacchai comments : ' God wished 
that the camp of the Israelites should be holy, not abandoned to 
fornication and other abominations like the camps of the Gentiles.' 

Arrian, after relating that Alexander, captivated by the love for 
Roxane, ' did not desire to misuse her as a captive, but thought it 
proper to marry her ', adds his approval of the act. Of the same 
act Plutarch says : ' He did not misuse her, but took her to wife, 
as was becoming for a philosopher.' Plutarch relates also that 
a certain Torquatus was banished to Corsica 5 by a decree of the 
Romans, because he had violated a maiden of the enemy. 

1 Also Lucullus, according to Xiphilinus [Dio Cassius, XXXVI. iv]. See the proclamation of the 
Moor Cabaon in Procopius, Vandalic War, I [I. viii]. 

2 Appian, Mithridatic Wars [xlvii], says of the captured Chians : ' The women and children were 
barbarously violated by those who carried them off.' 

3 Belisarius everywhere observed this, as did Totila at the capture of Cumae and Rome. This 
is recorded by Procopius, Gothic War, III [III. i, viii and xx]. 

4 As Philo eloquently explains in his book, On Humanity [xiv]. Says Josephus, Against Apion, 
II [II. xxix. 212] : ' The law also cared for prisoners of war, that they might be protected, especially 
the women, from insult.' 

5 But Chosroes, the Persian king, crucified a man who had assaulted a girl of Apamea ; Procopius, 
Persian War, II [II. xi]. 

Yy2 



Augustine, 
City of 
God, II 
[I. vi]. 



[XIX. 

viii.] 

Various 
History, 
VI [i]. 



[Anabasis 
of Alex- 
ander, IV. 
xix. 9.] 



xi = p. 

332 E.] 

Parallels 
[xiii=p. 
308 F]. 



On Dutus, 
32]- 



[V. xi.] 



XXXI 

[xxx. 2- 






Annals, 
XIII 



[468] CHAPTER V 

ON DEVASTATION AND PILLAGE 

I. Enemy property may be destroyed and fillaged 

That it is not contrary to nature to despoil him whom it is 
honourable to kill, 1 was said by Cicero. Therefore it is not strange 
that the law of nations has permitted the destruction and plunder 
of the property of enemies, the slaughter of whom it has permitted. 
Consistently with this, Polybius in the fifth book of his Histories says 
that the plunder or destruction of enemy fortifications, harbours, 
cities, men, ships, crops, and anything else of the kind, is included 
in the law of war. We read in Livy that ' there are certain rules 
of warfare which it is proper for us both to enforce and to endure : 
the burning of crops, the destruction of buildings, and the driving 
orT of men and cattle as spoil.' 

On almost every page of historical writings you may find accounts 
of the destruction of whole cities, or the levelling of walls to the 
ground, the devastation of fields, and conflagrations. It must be 
noted furthermore that such acts are permissible also against those 
who have surrendered. ( The townsmen ', says Tacitus, ' voluntarily 
opened the gates and placed themselves and their belongings in the 
hands of the Romans, and this secured safety for themselves ; but 
Artaxata was set on fire.' 



vii. 36. 



[IV. lv. 

122.] 



II. Even enemy froferty that is sacred may be destroyed and pillaged ; 
how this is to be understood 

1. Now the law of nations in itself, apart from the consideration 
of other obligations of which we shall speak below, does not exempt 
things that are sacred, that is, things dedicated to God or to the 
gods. ' When places are taken by the enemy, all things cease to be 
sacred ', 2 says Pomponius the jurist. ' Victory had made profane 
thc sacred things of Syracuse , says Cicero in his fourth oration 
Against Verre's. 

1 Suetonius, Nero, xl : ' As though by the law of war an occasion had arisen for plundering the 
wealthiest provinces'. Cyprian, On Mortality [chap. viii] : ' So when possession has been taken of 
a state through an invasion of enemies, captivity falls upon all alike.' 

1 Tertuilian, Af>olo%y fxxv] : 4 Furthermore wars and victories consist very often in the capture 
and dc | cities. Such procedure is not without injury to the gods. There is the same destruc- 

tion of fortifications and of temples, a like liaugatering of citizens and ol priests, a like plnndering o 
treasures sacred and profane. Thus the sacrileges of the Romans are as numerous as their trophies, 
their triumphs over gods as numerous as those over peoples ; and their spoils of war are numbered 
by the images of captured gods which remain unto this day.' Soon after [xl] : ' And rightly so, for if 
any reverse h as overtaken the cities their temples have suffered the same ruin as their walls.' 

658 



Chap. V] 



On Devastation and Pillage 



659 



The reason is that the things, which are called sacred, are in 
fact not withdrawn from human use, but are public x ; however, 
they are called sacred from the purpose to which they are devoted. 
The proof of what I say is that when any people surrenders itself 
to another people, or to a king, there are also at the same time 
surrendered the things which are called divine. This is clear from 
the formula which we have cited elsewhere from Livy ; and with 
that the verse in the Amphitruo of Plautus agrees, 

Their city, lands, their altars, hearths, and persons 
Let them give up ; 



and then 



They yield themselves and all possessions, human and divine. 



2. In consequence Ulpian says that even sacred things are 
included under public law. In his description of Arcadia Pausanias 
says that it was a custom common to both Greeks and barbarians, 
that sacred things should be at the disposal of those who had captured 
cities. Thus he relates that when Troy was taken the image of 
Hercaean Jupiter was granted to Sthenelus ; and he gives many 
other examples of the same custom. Thucydides, in Book IV, 
says : ' It was the custom among the Greeks, that those who had 
power over a country, whether large or small, should also possess 
its shrines.' 2 With this agrees the statement in Tacitus : ' In the 
Italian towns, all ceremonies, and temples, and statues of the gods, 
are subject to the Roman law and authority.' 

3. Hence, furthermore, a people, having changed its mind, 
may make profane what has been sacred, as is clearly indicated by 
the jurists Paul and Venuleius. We see that, under the necessity 
of the times, sacred things have been converted to the uses of war 3 
by those who had consecrated them. This, we read, was done by 
Pericles, though with a promise of restitution, by Mago in Spain, 



I. iii. 8 
[Livy, 
VII. xxxi. 
4]- 

[226.] 



[258.] 



[IV. 
xcviii.] 



Annals, 
XII [III. 

Ixxi]. 

Digest, 
XLV. i. 

83. 5, 
and 137. 
6. 



1 Marsilius of Padua in the Defensor Pacis, chap. v, pt. 2 ; Nicolas de Bohier, Decisions, lxix, no. 1 ; 
Bossius, Practica Criminalia, De Foro Competente, no. 101 ; Cothmann, Consilia, c, no. 30. 

2 This custom is also revealed by a passage from Polybius cited below, III. viii. 4. 

3 As by the Syracusans in the time of Timoleon, in whose life Plutarch records this [Timoleon, 
xxiii = p. 247 e]. The Chians made up even from the sacred vessels the fine which Mithridates laid 
upon them ; Appian, Mithridatic Wars [vii. 47]. Pliny, Book VII, last chapter [Natural History, XVII. 
xxviii. end], in speaking of Marcus Porcius Cato, says : ' He sanctioned the cutting down of sacred 
trees [471] and groves, after the offering of sacrifice ; and he has handed down the reason for this 
in the same volume.' 

In the Mithridatic War, Sulla removed the votive offerings from Olympia, Epidaurus, and Delphi, 
as is related by Plutarch [Sulla, xii = p. 459 b] and Appian [Mithridatic Wars, viii. 54] ; and he also 
restored their value ; Diodorus Siculus in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis, 
i = p. 322]. Augustus borrowed treasures from the temples, as we learn from Appian, Civil Wars, 
V [V. ii. 13]. Cassiodorus relates that Agapetus gave sacred vessels in pledge, [Variae,] XII. xx. 

In time of grave need Heraclius coined money from the vessels of the Church, buc afterwards 
restored their value, as Theophanes relates. See also Anna Comnena, V [V. ii] and VI [VI. iii] ; Kromer, 
XXIII ; and the speech of Laurentianus in Bembo, Book VI. Add what is to be said below in III. 
xxi. 23. 



66o 



On the Law of War and Peace 



[Book III 



[Tiberius 
Gracchus, 
xv = 

p. 8 3 2 A.] 



Satumalta, 
III : 



Annals, I 

prj. 



[Aeneid, 
XII. 
778 .] 



VIII 

Against 

. III 
[I.xxi.57]. 



XXV 

[Xl. *]. 

[Livy, 

VIII. 
xliii. 10.] 

K ! X 

[Catiline, 



by the Romans in the Mithridatic War, [469] by Sulla, Pompey, 
Caesar, and others. In Plutarch Tiberius Gracchus says : * There 
is nothing so sacred and holy as orlerings to the gods. Nevertheless 
no one has hindered the people from using, moving, or transferring 
these.' 

In the Controversies of Seneca * the Father we read : ' Often- 
times the temples are stripped for the sake of the state, and we melt 
down offerings to serve as pay.' Trebatius, a jurist of the time of 
Caesar, says : ' That is profane, which, from being religious or 
sacred, has been transferred to the use and ownership of men.' 2 
Of this law of nations, therefore, Germanicus made use against the 
Marsi, when, as Tacitus relates : ' Profane and sacred structures alike, 
even the temple most famed among these peoples, which they called 
the shrine of Tanfana, were levelled to the ground.' Here apply 
the lines of Virgil : 

If I your altars always have revered, 
Which the Trojans have profaned in war. 

Pausanias has recorded that gifts to the gods are as a rule seized 
by the victors 3 ; and Cicero, speaking of Publius Servilius, calls this 
the law of war. ' He removed statues and ornaments ', Cicero says, 
' from the city of the enemy which had been taken by force and 
valour, in accordance with the law of war and the right of a com- 
mander.' Thus Livy says that the adornments of the temple, which 
Marcellus brought to Rome from Syracuse, ' were acquired by the 
law of war '. Gaius Flaminius, in speaking for Marcus Fulvius, says : 
1 Statues were carried off and other things done which are usually 
done when cities are captured.' Fulvius 4 also in a speech calls this 
very thing the law of war. Cato [Caesar] in a speech reported by 
Sallust, in recalling what usually happens to the vanquished, mentions 
likewise the pillaging of shrines. 5 

4. Nevertheless this is true, that if a divinity is believed to 



1 In the Excerpta, IV. iv. 

* Servius, On the Aeneid, II [II. 713], says of the temple of Ceres : * Aeneas knew that it had 
previously been profaned.' He says the same On the Aeneid, III, IX, and XII. Moreover, On the 
Edogues, VII | VII. 31], he remarks : ' Gifts offered to deities are sacred, and may be called offerings, 
only so long as they have not been profaned.' 

* Virgil, Aeneid, V [line 360] : 

By Greeks ta'en down from Neptune's sacred door. 

Plutarch, in his Fabius [xxii = p. 187 c, d], relates that he captured a statue of Hercules at Tarentum 
and sent it to the Capitol ; he left to the Tarentines the rest of their gods, because they were hostile. 
In harmony with this is the quotation we have just made from Tertullian. and also the following trmn 
the same author, Against the Nations, II [II. xvii] : ' Hencc M manv iriuinphs over gods as over 
peoples. Still remaininp unong them are their captive idols. and if these perceive their conquerors 
they d 

4 See Polybius. Selections on Embassies, xxvii [ = Histories, XXI. xxx]. 

* Set ! k XVI I [p. 402]. With regard to the property of the Church at Antioch captured 
by Chosroes, see Procopius, Persian War, II [II. ix]. 



Chap. V] 



On Devastation and Pillage 



661 



reside in an image it is unlawful that the image shall be defiled or 
destroyed by those who share such belief. On the assumption that 
such a belief is held, those who have committed acts of this character 
are sometimes accused of impiety or of contravention of the law of 
nations. The case is difTerent if the enemy do not hold the same 
view ; so the Jews were not only permitted but even enjoined to 
destroy the idols of the Gentiles. 

The reason why the Jews were forbidden to take the idols of 
their enemies was, that they might the more abominate the super- 
stitions of the Gentiles, having been warned against contamination 
by the very prohibition of contact. The purpose was not to spare 
what was sacred to others, as Josephus * explains, doubtless from 
flattery to the Romans, just as in his explanation of the other com- 
mand, about not naming the gods of the Gentiles ; for he explains 
this as though the Jews were forbidden to speak evil of the gods of 
the Gentiles, when in fact the law would not permit them to be 
named for the sake of honouring them, or without execration. The 
Jews in fact knew, through the most certain admonition of God, 
that in these idols there dwelt, not the spirit of God, nor good 
angels, nor the power of the stars, as the misguided Gentiles thought, 
but base demons, hostile to the human race. As Tacitus rightly said 
in describing the institutions of the Jews : ' In their view all things 
are profane which among us are sacred.' Hence it is not strange 
if we read that the Maccabees more than once set fire to temples 
of a profane cult. 

When, therefore, Xerxes destroyed the images belonging to the 
Greeks, he did nothing contrary to the law of nations, although 
Greek writers exaggerate this greatly in order to arouse enmity. 
For the Persians did not believe that there were any divinities in 
idols, 2 but thought that God was the sun, and any fire was a part 
of him. By the Hebraic law, as Tacitus also rightly says : ' None 
but the priests were permitted to cross the threshold of the Temple.' 

5. Nevertheless Pompey, according to the same author, entered 
the Temple by right of conquest ' ; or, as Augustine, referring to the 
same incident, says, ' not with the devotion [470] of a suppliant, 
but by the right of a conqueror '. He did well to spare the Temple 
and its furnishings, although, as Cicero expressly says, he did so from 
shame and fear of his critics, not from respect ; but he. did wrong 
to enter, seeing that he despised the true God, an attitude which 
the Prophets censured in the Chaldaeans also. For this reason some 
persons even believe that the wonderful providence of God caused 



Histories, 

V[iv]. 



Asconius 

Pedianus, 

On 

[Cicero's] 

A gainst 

Verres, III 

[I. xviii. 

48]. 

[Histories, 

V. viii, ix.] 

City of 

God, 

XVIII. 

xlv. 

For 

Flaccus 

[xxviii. 

68]. 

Daniel, 
v. 23. 



1 Josephus, Antiquilies of the Jews, IV. viii [IV. viii. 10], and Against Apion, II [II. xxxiii. 237]. 

2 Diogenes Laertius at the beginning [procem., vi] says : ' Idols are condemned by the magi.' 



662 On the Law of War and Peace [Bocklll 

the Pompey whom I mentioned to be slain as it were in the sight 

oi Judaea, at Cassius, a promontory of Egypt. 

Still, if you consider the point of view of the Romans, nothing 

in relation to the Temple in Jerusalem was done contrary to the law 
jeuHsh of nations. Thus Josephus relates that the Temple was destroyed by 

xxZ' and Titus, and adds that it was destroyed in accordance with the law 

of war '. 

iv. 3 and 

III. Enemy property that is consecrated may be destroyed or pillaged ; 
a caution is added 

What we have said of sacred things should be understood of 
consecrated things as well ; for these, also, do not belong to the 
dead but to the living, being the possession of a people or of a family. 

[Dig. xi. Therefore Pomponius in the passage cited above wrote that, just as 
sacred places, so consecrated places ceased, when taken by enemies, 

Digest, to be such ; and Paul the jurist said : ' The burial-places of the 

enemy are not consecrated for us, and so we can use for any purpose 

stones that have been removed from them.' 

Nevertheless the principle laid down must be so interpreted 

that the bodies of the dead are not to be mistreated, because that 

is contrary to the law of burials ; and the law of burials, as we have 

[ii. xix. shown elsewhere, was introduced by the law of nations. 
1. 1.] 

IV. How far deceit is permissible in these matters 

At this point I shall briefly repeat, that enemy property may 
be seized not alone by force, but that ruses which do not involve 
breach of faith are held to be permissible ; permissible, again, is 
even the inciting of another to treachery. In truth the law of 
nations begins to wink at these frequent minor wrongs, just as 
municipal laws at harlotry and usury. 



CHAPTER VI 

ON THE RIGHT OF ACQUIRING THINGS TAKEN IN WAR 

I. What the law of nature is regarding the acquisition of things taken 
in war 

[472] 1. Besides the impunity among men in relation to 
certain actions, which we have discussed up to this point, there is 
also another effect characteristic of public war according to the law 
of nations. 

According to the law of nature, by a lawful war we acquire 
things which are either equal to that which, although it was owed 
to us, we could not otherwise obtain, 1 or we inflict upon the guilty 
a loss that does not exceed an equitable measure of punishment, 2 
as has been said elsewhere. By this law Abraham gave to God 
a tithe 3 of the spoils which he had taken from the five kings, as the 
inspired writer of the Epistle to the Hebrews (vii. 4) explains the story 
which is found in Genesis, xiv. In like manner the Greeks also, the 
Carthaginians, and the Romans consecrated to their gods, such as 
Apollo, Hercules, and Jupiter Feretrius, a tenth of their booty. 

Jacob, too, in leaving to Joseph a special legacy in preference 
to his brothers, said : ' I give thee a portion above thy brethren, 
which I took out of the hand of the Amorite with my sword and 
with my bow ' (Genesis, xlviii. 22). In this passage the words 
' I took ' 4 apparently are to be understood, in the prophetic manner 
of speech, as ' I shall assuredly take ', and there is attributed to 
Jacob that which his descendants called by his name were to do, as 
if the persons of the progenitor and his children were the same. 
It is in fact more correct to take the meaning thus than to refer 
these words, as the Jews do, to the pillaging of Shechem, which had 
already been accomplished by the sons of Jacob ; for Jacob, as 
became his uprightness, always condemned this act as having been 
associated with treachery, as one may see in Genesis, xxxiv. 30, and 
xlix. 6. 

2. Moreover it is clear from other passages also that God 
approves of this right of spoil within the natural limits which I have 
mentioned. In His own law, when speaking of the city that has 

1 II. vii. 2. 2 II. XX [II. XX. 28 ff.]. 

3 And victuals to his servants, and a part of the spoil to his allies. See Josephus on this story 
[Antiquities of the Jews, I. x. 2], and what follows below, III. xvi. 3. 

4 The Chaldaean commentator interprets this as accomplished through prayers to God, who by 
a certain exceptional benevolence had preserved Shechem for Jacob and his posteritv. 

663 



66 4 



On the Law of War and Peace 



[Book III 



Deut., xx. 

IX. 



I Chron., 

V. 20, 21, 



2 Chron. 

xiv. 13. 



Joshua, 
xxii. 8. 



[i Samuel, 
xxx. 26.] 

On 

Benefits, 
III. xxxvii 
-III. 
xxxiii]. 

On Curses 

[q. 



been stoned after the rejection of peace, God speaks thus : ' Even 
all the spoil thereof thou shalt take for a prey unto thyself : and 
thou shalt eat the spoil of thine enemies, which Jehovah thy God 
hath given thee.' The men of the tribe of Reuben, of Gad, and part 
of the tribe of Manasseh are said to have conquered the Ituraeans 
and their neighbours, and to have taken much spoil from them ; and 
the reason is given, that they had called upon God in the war, and 
He had listened to them with favour. It is likewise recorded that 
the pious king Asa, after calling upon God, won both a victory and 
spoil from the Ethiopians, who were harassing him in an unjust war. 
The result is all the more noteworthy, because in these cases force 
was resorted to, not by a special warrant, but by a right common 
to all. 

3. Joshua, again, when following with his blessing the very 
men of the tribes of Reuben, Gad, and a part of the tribe of Manasseh, 
whom I have mentioned, said : ' Divide the spoil of your enemies 
with your brethren.' And David, when he sent to the Jewish elders 
spoils won from the Amalekites, gave value to the gift in saying : 
1 Behold, a present for you of the spoil of the enemies of Jehovah.' 

In fact, as Seneca said, for soldiers it is perfectly fair to enrich 
some one with spoils taken from the enemy. Divine laws also 
regarding the division of booty are to be found in Numbers, xxxi. 27. 
Philo says that it is among the curses of the law that the land should 
be harvested by the enemy, whence follows ' famine for friends, but 
abundance for the foe '. 



Xenophon, 
On the 
Training 
of C\> 
V VII. v. 



ii = 626 b]. 
Sophtst 

[ = 2I 9 ff.]. 

Comm. IV 
[Memora- 
bilia, IV. 
U. 15]. 



II. What the law of nations is ; evidences are cited 

1. By the law of nations not merely he who wages war for 
a just cause, but in a public war also any one at all becomes owner, 
without limit or restriction, [473] of what he has taken from the 
enemy. That is true in this sense, at any rate, that both the possessor 
of such booty, and those who hold their title from him, are to be 
protected in their possession by all nations ; and such a condition 
one may call ownership so far as its external efTects are concerned. 

In Xenophon Cyrus says : ' It is an eternal law among men 
that, whenever a city of the enemy is taken, their property and 
money belong to the captors.' Plato said : ' All goods of the con- 
quered become the property of the conqueror.' Elsewhere, among 
the quasi-natural modes of acquisition, he places that ' by warfare ', 
which he also calls ' by pillage ', * by combat ', and * by strength of 
hand '. In this matter Plato has the approval of Xenophon, whom 
I have mentioned. In Xenophon's work Socrates, by means of 
questions, lcads Euthydemus to the admission that it is not always 



Chap. VI] On the Right of Acquiring Things taken in War 665 



unjust to plunder, as when plundering is done to the detriment of 
an enemy. 

2. On the authority of Aristotle also we read : ' The law is 
a sort of agreement, according to which things taken in war belong 
to those who take them.' Of the same purport is the saying of 
Antiphanes [Antisthenes] : ' One ought to pray that the enemy have 
possessions without courage ; for in that case their possessions become 
the property, not of those who have them, but of those who seize 
them.' In Plutarch's Life of Alexander 1 we read : ' The possessions 
of the vanquished should be, and should be called, those of the victor.' 

The same author elsewhere says : ' The goods of those who are 
conquered in battles lie as prizes for those who conquer.' The 
passage is taken from the second book of Xenophon, On the Training 
of Cyrus. King Philip in his Letter to the Athenians said : ' All these 
cities we hold either because they were left to us by our ancestors 
or because we have obtained possession of them by war.' Aeschines 
says : ' If indeed, after making war upon us, you took the city by 
force of arms, you are in rightful possession of it, since you have it 
by the law of war.' 

3. In Livy Marcellus says that what he took from the Syracusans 
he took by the law of war. 2 The Roman envoys said to Philip with 
regard to the cities of Thrace and other cities that, if he had taken 
them in war, by the law of war he would hold them as the reward 
of victory ; and Masinissa declared that he held by the law of nations 
the territory that his father had taken in war from the Carthaginians. 
Likewise, in Justin, Mithridates said : ' He had not withdrawn his 
son from Cappadocia, of which, as victor, he had taken possession 
by the law of nations.' 

Cicero states that Mitylene had come into the possession of the 
Roman people ' by the law of war and the right of victory '. He says 
also that some things began to be private property either by taking 
possession of that which was without an owner, or by war ; that is, 
in the latter case things became the property of those who obtained 
them by victory. Dio Cassius affirms : ' The possessions of the 
conquered fall to the victors.' Even Clement of Alexandria says that 
the property of enemies may be carried off and acquired by the 
law of war. 

4. ' What is taken from the enemy, by the law of nations 
becomes at once the property of those who take it,' says Gaius the 



Politics, 
[vi]. 



[II. iii. 2.] 

[Demo- 

sthenes, 

Orations, 

xii. 22 =: 

P- 164-] 

Onthe 

Badly 

Conducted 

Embassy 

[xxxiii]. 

[XXVI. 



Dig. XLI. 
i.5. 7- 



1 In the same work [xxxii=p. 684 a] : ' Conquerors acquire also for themselves the things which 
belong to their enemies.' 

2 [487] Diodorus Siculus, Excerpta Peiresciana, no. 467 [Excerpta de Virtutibus ei Viliis, i= p. 323], 
says : ' What is acquired by arms and won by the law of war is not to be given up.' In Agathias, 
Book II [I. v], the Goths said of Theodoric, after he had conquered Odoacer: ' He held by the law of 
war all that had belonged to Odoacer.' 



666 



On the Law of War and Peace 



[Book III 



Institutes, 
H.i[i7]. 
Aristotle, 
Politics, 
I. viii. 



Dig. XLI. 
ii. i. i. 



Greek 
Historv, 
III Hel- 
lenica, III. 
i. 26ff.l. 



jurist. Theophilus, in the Greek Institutes, calls this a ' natural 
acquisition ', in the sense in which Aristotle said ' acquisition by war 
is a method according to nature '. The reason doubtless is that the 
bare fact, not the cause, is held in view, and in the fact the right 
has its origin. 

With precisely similar meaning Nerva the Son, as the jurist Paul 
relates, used to say that the ownership of things arose from natural 
possession, and that a trace of this remains in relation to those things 
which are taken on land, in the sea, or in the air ; likewise in respect 
to the things taken in war, all of which become at once the property 
of those who were the first to take possession of them. 

5. Furthermore, what is taken from the subjects of an enemy 
is also considered as taken from the enemy. Thus Dercyllides argues 
in Xenophon, [474] that since Pharnabazus was an enemy of the 
Lacedaemonians, and Mania was a subject of Pharnabazus, the 
property of Mania stood in such a relation that it could rightfully 
be seized, according to the law of war. 



Dig. XLI. 
i. 44- 



Diest, 
XI. IX. xv. 

iQ-3I30. 
Di^est, 
XI. IX. xv. 
5- 1; 
Institutes, 
H i. 5 17. 

XLIX.xv. 
5. |i.] 



Institutes, 
loc. cit. ; 

\LI. 
1.3. |7. 



III. When a thing capable of being moved may be held to have been 
caftured, according to the law oj nations 

1. In this inquiry in regard to war, however, the nations have 
agreed that he is to be understood as having captured a thing who 
retains it in such a way that the original possessor has lost probable 
expectation of regaining it, or so that the thing has escaped pursuit, 
as Pomponius says in a similar inquiry. In the case of things that 
are movable, this principle is so extended that such things are said 
to have been captured when they have been brought within the 
borders, that is to say, the defences, of the enemy. 

A thing in fact is lost in the same manner by which it returns, 
by postliminy ; it returns when it begins to be within the borders 
of the state, and that is elsewhere explained as within the defences. 
Paul says clearly, with regard to a man, that he is lost when he has 
gone outside of our frontiers ; and Pomponius explains that a captive 
in war is he whom the enemy have taken from among our men and 
brought within their own defences. Such a man, before he is brought 
within the defences of the enemy, remains a citizen. 

2. Now as regards this aspect of the law of nations, the same 
reasoning was applied to a man and to a thing. Whence it is easy 
to understand that the statement elsewhere made, that captured 
things immediately become the property of those who capture them, 
should be understood as implying the condition that possession con- 
tinue up to this point. 

:ice it secms to follow that on the sea ships and other things 



Chap. VI] On the Right of Acquiring Things taken in War 667 



may be considered as captured only when they have been brought 
into dockyards or harbours, or to the place where a whole fleet is 
stationed ; for then recovery begins to appear hopeless. But in the 
more recent law of nations we see the doctrine introduced among 
European peoples that such things may be considered as captured 
when they have been for twenty-four hours * in the power of the 
enemy. 

IV. When territory may be held to have been capured, according to 
the law of nations 

1. Nevertheless territory is not considered as captured at the 
moment it is occupied. While it is true that that part of a territory 
which an army has invaded in great force is temporarily possessed 
by it, as Celsus has noted, still such possession is not sufficient for 
that eflect which we are discussing, for which secure possession is 
required. The Romans were so far from considering as lost the land 
outside the gate which Hannibal was occupying with his c.amp, that 
at that very time it sold at a price no lower than before. Therefore 
only that territory will be regarded as captured which is so sur- 
rounded by permanent fortifications that the other party will have 
no access to it openly unless these have first been taken. 

2. The origin of the word ' territory ' as given by Siculus 
Flaccus from ' terrifying the enemy ' (terrendis hostibus) seems not 
less probable than that of Varro from the word for ploughing (terendo), 
or of Frontinus from the word for land (terra), 2 or of Pomponius the 
jurist from ' the right of terrifying ' (terrendi iure), which is enjoyed 
by the magistrates. So Xenophon, in his book On Taxes, says that 
the possession of territory in time of war is retained by means of 
fortifications, which he calls ' walls and entrenchments '. 



Consolato 
del Mare, 
cclxxxiii. 
and 

cclxxxvii ; 
Constitu- 
tions of 
France, 
XX. xiii. 
24. 



Cornelius 
a Lapide, 
On Gene- 
sis, xiv ; 
Molina, 
disp. 118. 
Dig. XLI. 
ii. 18. 
Livy, 
XXVI 
[xi.6]. 



[p. 3, edit. 
Goes.] 
[On the 
Latin 
Language, 
V. xxi.] 
[Dig. L. 
xvi. 239, 
8.] 

[IV. xliii 
*.] 



V. Property which does not belong to the enemy is not acquired by war 

This also is clear : In order that something may become ours 
by the law of war, it must belong to the enemy. Those things which 
are in the enemy's possession, to be sure, in their towns, for example, 
or within their fortifications, but of which the owners are neither 
subjects of the enemy nor hostilely inclined, cannot be acquired by 
war. It has been shown, among other things, in a passage of Aeschines 

1 That this custom is observed on land also may be learned from De Thou, Book CXIII, on the 
year 1595. The rule is derived from the Germanic laws, and follows the precedent which these 
people, not without reason, had cstablished for themselves in regard to a wounded wild animal, as in 
the Law of the Lombards, I. xxii. 6. Alberico Gentili, Hispanica Advocatio, I. iii, says that the same 
rule is observed in England and in the kingdom of Castile. 

2 [Grotius seems to have misread a passage of Godefroy's note on Digest, L. xvi. 239, which states 
that Frontinus derived it from terrendis hostibus, Cujas from terra.] 



[On the 

Badly 

Conducted 

Embassy, 

xxxiii.] 



668 On the Law of War and Peace [Booklll 

previously cited, that Amphipolis, which was a city of the Athenians, 
could not have become the property of Philip as a result of Philip's 
war against the citizens of Amphipolis. For this would be unreason- 
able, and the right of changing ownership by means of force is too 
orTensive to merit wider application. 

VI. JVhat of goods found in ships of the enemy ? 

Consequently the current statement that goods, which are found 
in ships of the enemy, are to be considered as belonging to the 
enemy, 1 should not be accepted as if it were a fixed provision of the 

Consoiato law of nations, [475] but as indicating a certain presumption. 

tdxxS? This presumption, however, may be overthrown by valid proofs to 
the contrary. 

In our native country of Holland formerly, in the year 1438, 
when war was raging with the Hanseatic towns, a decision to that 
efTect was reached at a full session of the Senate, as I have found, and 
from that decision the provision passed into a law. 



VII. Things which our enemies have taken from others by war become 
ours according to the law of nations ; this is attested by evidence 

1. The principle, however, is beyond dispute if we have 
reference to the law of nations that what has been taken by us 
from the enemy cannot be claimed by those who had possessed it 
before it came into the possession of our enemy, and had lost it in 
war. The reason is that the law of nations, through external owner- 
ship, first made our enemy the owner, and then us. 

Judges, xi. By this right, among others, Jephtha defends himself against the 

Ammonites, because that territory, which the Ammonites claimed, 
had by the law of war passed from the Ammonites ; just so another 
part also had passed from the Moabites to the Amorites, and from 

1 sam., the Amorites to the Jews. Likewise David 2 regarded as his own, 



1 But the ships of friends do not become prizes because they are carrying goods of the enemy, 
unless this happens with the consent of the owners of the ship, Digest, XXXIX. iv. n ; Rodericus 
Suarez, De Usu Maris, consilium ii, no. 6. 

In this sense I think we must interpret the laws of France, which render vessels liable to seizure 
because of their goods, and goods because of the ships which carry them. Such are the laws of Francis I 
issued in 1543, chap. xlii ; of Henry III, issued in March, 1584, chap. lxix ; and the Portuguese Law, 
Book I, tit. xviii. 

-where the goods themselves are alone liable to seizure ; Meurs, Danish History, II. Thus 
in the war between the Venetians and the Genoese Greek ships were searched and any enemies who 
were concealed in them were removed ; Gregoras, IX [IX. v]. See also Krantz, Saxonica, II, and 
Alberico Gentili, Hispanica Advocatio, I. xx 

* And so Rezin, king of Syria, gave the city Eloth, which had belonged to the Idumaeans, not to 
the Idumaeans but to the Syrians, for them to dwcll there, according to the reading of the Masorites, 
2 Kings, xvi. 6. 



Chap. VI] On the Right of Acquiring Things taken in War 669 

and distributed, what he himself had taken from the Amalekites, and 
the Amalekites had taken from the Philistines. 

2. According to Dionysius of Halicarnassus, when the Volscians * 
demanded their former possessions, Titus Largius in the Roman 
Senate expressed his opinion thus : 

We Romans consider as our fairest and most lawful possessions those which we have 
taken and hold by the law of war ; and we would not foolishly sufTer valour to be for- 
gotten by surrendering these possessions to those who have lost them. Such possessions 
we think are not only to be shared in by our citizens who are living, but are also to be 
left for posterity. If we allow ourselves to be deprived of what we now have, we shall 
injure ourselves in the same manner in which we injured the enemy. 

Similar was the answer given by the Romans to the Aurunci : 
* We Romans think that with perfect right one may hand down, as 
his own, to his descendants, whatever he has acquired by courageously 
wresting it from the enemy.' Elsewhere, in reply to the Volscians, 
the Romans speak as follows : 

But we consider as our best possessions those which we have taken by conquest in 
war. We were not the first to establish this right, nor do we think that it is a law of 
men rather than of the gods ; but we know that all, both Greeks and barbarians, make 
use of it, and we would not yield to you anything in cowardice, nor abandon what we 
have won in war. For it would be the utmost disgrace if any one through cowardice 
and folly should be deprived of what had been won by courage and bravery. 



[Roman 
A ntiqui- 
ties,] VI 
[xxxvi]. 



[Dion. 
Hal., VI. 

xxxii.] 



<s 



mce 



There is a similar thought in the reply of the Samnites : 
we have acquired these things in war, which is a perfectly fair law of 
acquisition.' 

3. After relating that the land near Luna was divided by the 
Romans, Livy speaks of it thus : ' This land had been taken from 
the Ligurians ; it had belonged to the Etruscans before the Ligurians.' 
By such a right Appian notes that the Romans retained Syria, and 
did not restore it to Antiochus Pius, from whom Tigranes, an eriemy 
of the Romans, had taken it. 2 Justin, quoting from Trogus, repre- 
sents Pompey as replying thus to the same Antiochus : ' Since 
Pompey had not taken the kingdom from Antiochus when Antiochus 
held it, inasmuch as Antiochus had yielded it to Tigranes, Pompey 



1 Plutarch, Romulus [xxv= p. 33], tells the same story with regard to Veii : ' The people of Veii 
began the war with the demand that Fidenae should be restored to them, just as if it belonged to them. 
This was not only unjust but also ridiculous, seeing that they had not aided Fidenae when in distress 
and engaged in war, but had permitted the population to perish, and now laid claim to the houses and 
fields from those who held possession of these as the result of war.' 

2 Appian [Syrian Wars, viii. 49] speaks as follows : ' It was not right that the Seleucidae, who 
had been dispossessed by Tigranes, should occupy Syria, rather than the Romans who had conquered 
Tigranes.' And elsewhere [Mithridalic Wars, xv. 106] : ' He believed that since he had driven the 
conqucror of Antiochus from this land he had thereby acquired it for the Romans.' Antiochus himself, 
in Polybius, Selections on Embassies, lxxii [= p. 307], ' thought that the possession acquired in war was 
the surest and most honourable '. 



670 



On the Law of War and Peace 



[Bock III 



[Appian,] 
Civil Wars, 
29]. 



would not give to him what [476] he did not know how to defend.' 
Likewise the Romans held as their own those parts of Gaul l which 
the Cimbri had wrested from the Gauls. 



Bartolus, 
On Dig., 

XLIX. 

- s ; 

Alexander 
and Jason, 
On Dig., 
XLI.ii.l; 
Angelus, 
On Inst., 
II.i.i 7 ; 
Panormi- 
tanus, On 
Decretals, 
II. xxiv. 
13, no. 7; 
Thomas 
Gramma- 
ticus, Deci- 
siones Xea- 
politanae, 
lxxi, no. 
17; 

Martinus 
Laudensis, 
De Bello, 
qu. 4. 

[III. vi. 

2.4.] 



VIII. The opinion, which holds that things taken from the enemy 
hecome the property of the individuals who capture them, is refuted 

It is a more serious question, Who acquires the goods of the 
enemy in a public and formal war : the people itself or the individuals 
who are of it or within it ? 

On this point the more recent interpreters of the law hold very 
diverse opinions. The majority of them, having read in the Roman 
law that captured things become the property of those who take 
them, but in the collection of canons that booty is divided according 
to the will of the people, have declared one following the other, 
as is usually the case that in the first place and by the law itself 
things captured belong to the individuals who lay hands on them, 
but that they are to be assigned to the commander for distribution 
among the soldiers. Since this view is as widely current as it is false, 
we must refute it with so much the greater pains, that it may serve 
as an example of how little trust, in controversies of this sort, is to 
be placed m such authorities. 

However, it is not to be doubted that by agreement of the 
nations either practice may be established ; that is, that the owner- 
ship of captured goods may fall to the people which wages the war, 
or to any one who lays hands upon them. But we are inquiring what 
their will has been ; and we say that the nations have decided that 
the property of enemies should stand to enemies in the same relation 
as ownerless property, as we have already indicated from the saying 
of Nerva the Son. 



IX. By the law of nature hoth possession and ownership may be acquired 
through another 

1 . Things which are ownerless, to be sure, become the property 
of those who take them, but they become just as much the property 
of those who obtain possession of them through others as of those 
who take them for themselves. Consequently not only slaves and 
children, but also free men, who in fishing, fowling, hunting, or 
gathering pearls, have given their assistance to others, at once acquire 

1 The Franks did not restore to the Romans the lands of Italy whirh they htd Kcdved from the 
- opius, Gothic War, IV [IV. xxiv]. See what the king of Sweden says, in Dc Thou, Book 
LXXVI, on ihe veur 1582. 



Chap. VI] On the Right of Acquiring Things taken in War 671 

what they have taken for those persons whom they serve. Modestinus pig. xli. 
the jurist was right in saying : c What is acquired naturally, as lo3< 
a possession, we acquire through any person at all, if we wish to 
possess it.' 

In his collected Sententiae Paul says : ' We acquire possession by v.ii[x]. 
means of the will and of the body ; by our own will, that is, but 
by either our own body or that of another.' The same writer thus Dig. xli. 
comments on the Edict : c We acquire possession through an agent, " * 2 * 
a guardian, or an executor ' ; and he explains that this happens 
when they act with the intention of rendering us such service. Thus 
among the Greeks, those who competed in the Olympic games 
acquired prizes for those by whom they were sent. The reason is 
that naturally one man by his own volition becomes the instrument 
of another's will, as we have also said elsewhere. [i. v. 3.] 

2. Therefore the distinction in regard to acquisitions, which Digest, 
is handed down as between free and unfree persons, belongs to the v a. i n 
civil law, and properly applies only to acquisitions under the civil p*g- xlv. 
law, as appears from the passage cited from Modestinus. Never- I7 ' 

theless the Emperor Severus afterward made such acquisitions 
approach more closely to the type of natural acquisitions, not in the 
interest of utility only, as he himself claims, but in that of juris- Code, vn. 
prudence also. If, then, we disregard the civil law, the principle 5v!' 
holds good that one may do through another what he can do himself, xii.68and 
and that the effect is the same whether any one acts for himself or 
through another. 



72. 



X. The distinction between hostile acts as public or private 

In our investigation, therefore, we must distinguish between acts 
of war that are truly of a public character, and private acts which 
are committed on the occasion of a public war. By private acts 
a thing is sought primarily and directly for private persons ; by 
public acts, for the people. 

It was, then, in accordance with the law of nations that Scipio, 
as Livy relates, treated thus with Masinissa : c Syphax has been Livy, 
beaten and captured under the auspices of the Roman people. In ^_ I0 ]. 
consequence he himself, his wife, his kingdom, land, towns, the men 
who inhabit them, in short whatever belonged to Syphax, are the 
spoil of the Roman people.' In the same manner Antiochus the 
Great argued that Coele Syria had been acquired by Seleucus and 
not by Ptolemy, on the ground that the war was the war of Seleucus, 
to whom assistance had been rendered by Ptolemy. The account is 
in Polybius, Book V. [v.ixvii.] 

1569.27 z z 



XLIX. 

XV. 20.] 



672 0n the Law of War and Peace [Booklll 

[4--] XI. Territory is acquired for a people, or for him whose 
war it is 

1 . Landed property is not usually taken except by a public act, 
upon the entry of an army and the establishment of garrisons. Thus, 

[Digcst, in the opinion of Pomponius, ' Land that has been taken from the 
enemy is public property ', that is, as he explains in the same passage, 
1 it is not classed as booty ', if we take the word booty in its strict 
sense. In Procopius, 1 Solomon the praetorian prefect said : ' It is 
not unreasonable that captives and other things should go to the 
soldiers as booty ' on the understanding that this is done by public 
consent, as we shall explain below ' but that the land itself should 
belong to the Emperor and the Roman state.' 

2. Thus among the Jews 2 and the Lacedaemonians land taken 
Dig.xxi. by force was divided by lot. So the Romans either kept captured 
jDfeVLU, territory in order to lease it, in some cases leaving a small portion 
15- 1. to the original possessor as a mark of honour ; or they sold it in 

parcels, or assigned it to colonists, or made it subject to taxes. For 
such disposition of conquered territory there is abundant evidence 
in the laws and histories, and in the treatises of the land-surveyors. 

[t * 7] In the first book of his Civil Wars Appian writes : * In conquering 

Italy by war, the Romans confiscated a part of the land.' In the 

[ii. xix. second book he says further : ' Whenever they conquered an enemy, 
they did not take away all his land, but seized a part of it.' Cicero, 

[xiix. 128.] in his speech For [On] his House addressed to the pontiffs, notes 
that territory taken from the enemy was in some cases consecrated 
by the victorious commander, but at the command of the people. 

XII. Movables, or things capable of motion, when captured by a private 
act, become the property of the individuals who take them 

1. But things which are movable, or are themselves capable of 
motion, if captured are taken either in the public service or outside 
of it. If they are taken outside of the public service, they become 
the property of the individuals who take them. To this principle 
pig. xli. should be referred the statement of Celsus : * Goods of the enemy 
which are in our midst are not public property but belong to those who 
have seized them.' By the words * which are in our midst ' we are 
to understand ' which are found in our midst after war has begun '. 

1 Vatiiiuli, War, II [II. xiv]. See also what follows there. Even Severua gimnted lo 1 lu- ^enerals 
thf irontiers laads taken from the enemy, [488] M LampridtOS notei [AlextmtUr 
Severus, lviii]. In the Swiss constitution it is provided that towns and fortrettes thml have been cap- 
tured fall to the cantons in common, according to man t Simler. 

* Among the same people the king mertl ai tnuch oi the captured territory as each 

tribe ; this is indicated in the Digest ofthe Talitmd, titlr On ihe King. 



Chap. VI] On the Right of Acquiring Things taken in War 673 

The same practice was observed with regard to men also, at the 
time when, in respect to the principle stated, captive men were 
classed with captured property. On this point a passage of Trypho- 
ninus is noteworthy : ' But those who, in time of peace, have arrived 
among other peoples, if war suddenly breaks out, become the slaves 
of those among whom, now their enemies, it is their fate to be 
caught ' ; for we must here read ' fate ', and not ' act ' or 6 agree- 
ment ' as the texts have it. This result is ascribed by the jurist to 
fate because they fall into slavery through no desert of their own. 1 
To attribute such things to fate is common. An example is the line 
of Naevius : ' At Rome by fate the Metelli are made consuls,' that 
is, without merit of their own. 

2. From the same principle it follows that if soldiers capture 
anything when they are not in formation or engaged in executing 
an order, but when they are acting under a general right or by mere 
permission, this they at once acquire for themselves ; for they do 
not make the capture in the capacity of servants. Such are the 
spoils which are torn from an enemy in single combat ; such also 
are spoils seized by soldiers in free and unauthorized raids at a distance 
from the army beyond ten miles the Romans used to say, as we 
shall see shortly. This sort of booty the Italians at the present day 
call ' raid-spoil ' (correria), and distinguish from ' sack ' (bottino). 

XIII. Movables, or things capable ofmotion, zuhen captured by a private 
act, do not become the property of individuals if the municipal law 
determines otherwise 

But our statement, that by the law of nations things movable 
or capable of motion are directly acquired by individuals, must be 
understood as applicable to the law of nations as unmodified by any 
municipal law covering the matter. Each people may in fact establish 
other rules valid over its citizens, and may thus forestall individual 
ownership ; as we see is done in many places with regard to wild 
animals and birds. In like manner it may also be provided by a law 
that goods of enemies which are discovered in our midst should 
become public property. 

XIV. Things captured by a public act become the property of the 
people or of him whose war it is 

1. With regard to those things, however, which are captured 
by an act of war, the situation is different. In this case [478] 



Digest, 

XLIX.xv. 

12. 



[Asconius 
Pedianus, 
On Ciccro y i 
Against 
Verres, II. 
i. 29.] 



Saliceto, 
On Code, 
VIII. 1. 2 
Thomas 
Gramma- 
ticus, De- 
cisiones 
Neapolita- 
nae, Ixxi, 
no. 18. 



1 So Servius, On the Aeneid, I [I. 32], ' Driven on by fate ', also contrasts these two ideas 
seeks to ascribe nothing to the deserts of the Trojans, but everything to the fates.' 

Z Z 2 



Virgil 



674 



On the Law of War and Peace 



[Book III 



[Iliad, 
125.] 



[lliad, IX. 
330 ff.] 



[Iliad, I. 
163 *) 

[Iliad, IX. 
279 ff-1 

^wii, II 
[762 .]. 



Plutarch, 
Aristides 
[v = p. 

321 D]. 

Herodotus, 
IX [lxxx 
ff]. 

Plutarch, 
Lysandet 
[xvi = p. 



individuals represent the person of the state, and act in its stead ; 
hence through them, unless a statute otherwise decrees, the people 
obtains both possession and ownership, and transfers this to whom- 
ever it wishes. Because this view is in direct conflict with common 
opinion, I feel that I must cite proofs more fully than usual from 
the examples of outstanding peoples. 

2. I shall begin with the Greeks, whose practice Homer describes 
in more than one passage : 

But the spoil which we took from the cities now has been divided. 

In the same poet Achilles, speaking of the cities which he had 
stormed, says : 

From all of these much rich spoil did I ravish, 

And all I brought and gave to Atreus' son ; 

But he by the swift ships remained behind, 

And, taking it, shared some with others, but kept much. 

Here Agamemnon is to be regarded, on the one hand, as at that 
time ruler of all Greece, and so taking the place of the people, and 
by that right dividing the booty, with the approval of his council ; 
and on the other as filling the post of general, hence obtaining 
a greater share than the rest from the common store. The same 
Achilles addresses Agamemnon himself as follows : 

Never have I with you of spoil an equal share, 
When Grecian valour has o'erthrown a Trojan town. 

Elsewhere Agamemnon oflers to Achilles, by public agreement, a ship 
full of bronze and gold, and twenty women, to fall to his lot from 
the spoil. Upon the capture of Troy, as Virgil narrates : 

Phoenix and hard Ulysses chosen guards 

Watched o'er the booty : hither from all sides 

The spoil of Troy snatched from the blazing shrines, 

With tables of the gods and mixing bowls 

Heavy with gold, and captured raiment, high 

Is heaped. 

In like manner at a later time Aristides guarded the booty from 
Marathon. After the battle at Plataea it was strictly forbidden that 
any one should remove anything from the spoil on his own authority ; 
later the spoil was distributed on the basis of the deserts of the 
several peoples. When Athens afterward was conquered, the booty 
was transferred by Lysander to the public treasure. Among the 
Spartans x the name of a public ofBce is ' sellers of booty '. 

1 While Agesilaus was operating in Asia, Spithridates had abstracted booty from the camp of 
1'harnabazus, which had been captured ; but when an inquiry was set on foot by the Lacedaemonian 
ides he took flight [Plutarch, Agesilaus, xi=p. 601 f\. 



Chap. VI] On the Right of Acquiring Things taken in War 675 

3. If we come to Asia, the Trojans, as Virgil teaches us, were 
accustomed ' to draw lots for booty ', as is usually done in dividing 
things held in common. At other times the decision to divide booty 
rests with the commander ; and by this right Hector, upon the 
express stipulation of Dolon, promises him the horses of Achilles, so 
that you may perceive that the right of acquiring ownership was 
not in the mere act of seizure. 

Spoil was brought to Cyrus, the conqueror of Asia ; and like- 
wise, at a later date, to Alexander. If we look to Africa, the same 
custom is found. Thus what was captured at Agrigentum, [479] 
and in the battle of Cannae, and elsewhere, was sent to Carthage. 
Among the ancient Franks, as we see from the History by Gregory 
of Tours, things which had been captured were divided by lot * ; 
and the king himself had nothing else from the spoil than what the 
lot assigned to him. 

4. But the Romans are more worthy of our consideration in 
respect to their examples in a degree commensurate with their 
superiority to the other nations in the art of war. Dionysius of 
Halicarnassus, a most careful observer of Roman customs, informs 
us on this point as follows : ' The law ordains that whatever has 
been captured from the enemy in battle becomes public property, 
in such a way that not only no private person may become owner 
of it, but not even the commander of the army himself. The 
quaestor takes possession of the things captured and auctions them 
orT, and deposits the money in the public treasury.' These are the 
words of those who accuse Coriolanus, and they are to some extent 
framed to arouse ill-will towards him. 



XV. Nevertheless in such things some right of decision is usually 
granted to commanders 

While it was true that the people were the owners of the spoil, 2 
it was not less true that, in the time of the free republic, the com- 
manders were entrusted with the decision in regard to its disposal. 3 
In Livy, Lucius Aemilius says : ' Cities that have been captured, 
not surrendered, are sacked, and nevertheless the decision in regard 
to them belongs to the commander, not to the soldiers.' 

1 This you find in Gregory of Tours, II. xxvii ; in Aimoin, I. xii, and in the Epitome, edited by 
Freher, chap. ix. The same custom is an old one among other peoples also. Servius, On the Aeneid, III 
[III. 323], She did not endure any casting of lots ', says : ' Because captives and spoil were divided 
by lot among the victors ; as : " to draw a lot for spoil ".' 

With respect to the collecting of the spoil for the common use, and the justification by oath among 
the Swedes and Goths, see Johan Magnus, XI. xi [Barbeyrac believes this a misquotation]. 

f See also on this point Simler, in the Helvetica. 

% Polybius, in the Excerpta Peiresciana [p. 1454], says of Lucius Aemilius Paulus : ' Although 
he had become master of the entire kingdom, and could dispose of everything at his pleasure, he sought 
nothing for himself.' 



6 7 6 



On the Law of War and Peace 



[Book III 



Livv, 
V [xxii. 
ij. 



This right of decision, which custom vested in the generals, they 
themselves at times referred to the Senate, as Camillus did, in order 
that thev might be the more free from all suspicion. The com- 
manders who retained the right are found to have made varied use 
of it, according as they were influenced by scrupulousness, regard 
for their reputation, and ambition. 



XIII. xxiii 
[XIII. 



'IV. liii. 
10.] 



II 

[xxxvii]. 



Letters, II. 

xvii. 4]. 



[The Two 
Bacchises, 
1075] 

[Captives, 
iii.] 



XVI. Commanders may turn booty over to the public treasury 

1. Generals who wished to be, or wished to be believed to be, 
most scrupulous, did not touch the booty at all. 1 If there was money 
in the booty, they ordered that it should be taken over by the 
quaestor of the Roman people ; if there were other things, they 
ordered that these be auctioned off by the quaestor ; and Favorinus, 
in Gellius, thinks that the money procured by such means was called 
1 proceeds of spoils ' (manubiae). Such money was placed by the 
quaestor in the treasury, after having been flrst publicly exhibited 
if the victory had warranted a triumph. 

In the fourth book of Livy it is said of the consul Gaius Valerius : 
1 There was considerable booty from the constant raids, because all 
the loot had been brought together in a safe place. The consul 
ordered the quaestors to sell this booty at auction, and deposit the 
proceeds in the treasury.' The same thing was done by Pompey, 
with regard to whom the words of Velleius are : * The treasure of 
Tigranes, in accordance with Pompey's usual practice, 2 was placed 
in the hands of the quaestor and entered in the public accounts.' 
Marcus Cicero pursued the same course, and in his letters to Sallust 
he writes thus of himself : ' Of the spoil I have taken, no one except 
the city quaestors, that is, the Roman people, has touched or will 
touch a quarter of a penny.' This was the practice especially in the 
ancient and better days, and Plautus has this in mind when he 
speaks thus : 

Now all this booty to the quaestor I shall take. 

In like manner, of captives he says : 

Whom I bought from the quaestors, out of the spoil. 

2. But others sold the booty themselves, without the aid of the 

1 ' Manius Curius swore that he had touched nothing from the booty except a vessel of beechwood 
with which to offer sacrifice ' [Pliny, Natural History, XVI. xxxviii]. The author of the De Vins 
Jllustrtbus [Aurelius Victor], in speaking of Mummius [chap. clx], says : ' He robbed Corinth of Btfttua 
and paintings, but, although he filled all Italy with them, he collected nothing in his own house.' 

Of the Aemilius Paulus just referred to, Plutarch [Aetnilius Paulus, xxviii =p. 270 d] says : ' Htfl 
bcstowcd no less praise upon his generosity and his magnanimity, because he did m>t wi>h cven to 
inspect the great quantity of gold and silver collected from the king's treasures, but gave it to the 
the public treasury.' 

* As on many occasions. See what is cited from Lucan in the following paragraph [III. vi. 17. 4]. 



Chap. VI] On the Right of Acqniring Things taken in War 677 

quaestor, and deposited the proceeds in the treasury, as we may gather 
from Dionysius of Halicarnassus in the words which follow [in the 
passage just cited]. Thus we read that in early times, after the defeat of 
the Sabines, the spoil and the captives were sent to Rome by King 
Tarquin. Thus, again, it is related that the consuls Romulius and 
Veturius sold the booty because of the poverty of the treasury, although 
the army was annoyed thereat. 

Since in fact we frequently find statements showing how much 
each of the generals deposited in the treasury either through himself 
or through his quaestor, from Italian, African, Asiatic, Gallic, and 
Spanish triumphs, [480] there is no need to accumulate examples. 
Rather is this to be noted, that the booty, or part of it, was given at 
times to the gods, at times to the soldiers, and at times to others. 
To the gods either the articles themselves were given, such as the 
spoils which Romulus hung in the temple of Jupiter Feretrius, or 
the money derived from them, as when from the proceeds of the booty 
from Pometia [Tarquinius] Superbus built the temple of Jupiter on 
the Tarpeian mount. 

XVII. Or commanders may divide the booty among the soldiers ; in 
what way such a division may be made 

1. The early Romans regarded the granting of the spoil to the 
soldiers as a form of bribery. Thus Sextus, the son of Tarquinius 
Superbus, but an exile at Gabii, is said to have given booty to his 
soldiery with the object of securing power for himself in this way. 
In the Senate Appius Claudius attacked a largess of similar character 
as being new, prodigal, and ill-considered. 

The booty granted to the soldiery is either divided or left for 
pillage. It may be divided on the basis of pay or of merit. 1 Appius 
Claudius desired that the booty be divided on the basis of pay, in 
case he should be unable to secure the transfer of the money derived 
from its sale to the treasury. Polybius carefully explains the whole 
system of distribution. For full days, or for watch periods, a half of 
the army, or a smaller portion, was regularly sent to collect booty. 
Each man was ordered to bring into camp what he had found, that 
it might be equally divided by the tribunes ; and a share was given 
both to those who had guarded the camp (a practice which, we read, 
was sanctioned also by King David among the Jews, and which from 
that source passed into law) and to those who had been absent on 
account of ill-health or assignment to details. 

2. Sometimes the booty itself was not granted to the soldiers, 

1 From Josephus, Antiquities of ihe Jews, Book III [III. ii. 5], we learn that this was done among 
the Jews. 



6 7 8 



On the Law of War and Peace 



[Book III 



Livv 
[XLV. 

xl.5; 
xxxiv. 5]. 

Suetonius, 
Caesar 
[Divus 
Julius], 
xxxviii ; 
and Ap- 
pian, Civil 
Wars, II 
[xv. 102]. 
Livy 
[Dion. 
Hal., VI. 
xciv]. 



[33 f.] 



[Trojan 
Women, 

274-] 

[Aeneid, 
IX.269f.] 



[IX. 
lxxxi.] 

[Dion. 
Hal.,] IV 

EQ. 

[SeUctions 
on Embas- 
sies,p. 18.] 



but the money derived from it was given to them in place of the 
bootv ; this was often done on the occasion of a triumph. 

This is the proportionate distribution that I find. A single 
share was given to a foot-soldier, a double share to a centurion, and 
a threefold share to a cavalryman. Sometimes a single share was 
allotted to a foot-soldier, and a double share to a cavalryman. Again, 
a single share was given to a foot-soldier, a double share to a centurion, 
and a fourfold share to a tribune and a cavalryman. 1 In many cases 
account was taken also of merit, as when Marcius was granted a share 
from the booty of Corioli 2 by Postumius, because of his brave 
conduct. 

3. Without regard to the way in which the division was made, 
the commander was allowed his selection 3 ; that is, he was permitted 
to take for himself, as first choice, as much as he chose, in other words, 
as much as he considered fair. This privilege was at times accorded 
to others also on account of their vaiour. 4 Euripides in his Trojan 
Women, speaking of the women of Troy of high birth, says : 

Outstanding women, who had been given to the chiefs 
Of the Grecian host. 

Of Andromache the same dramatist says : 

Pyrrhus received that noble woman for himself. 

In Virgil, Ascanius says of a horse : 

Him, the shield, and the ruddy crest, from the lot 
I shall exempt. 

Herodotus relates that after the battle of Plataea, as choice 
things, women, horses, and camels, were given to Pausanias. In this 
way King Tullius received Ocrisia, the chief woman of Corniculum. 
In Dionysius of Halicarnassus, Fabricius 5 says in an address to 
Pyrrhus : ' Of these things seized in war it was lawful for me to 
take as much as I chose.' 



1 To a tribune and a prefect of horse, says Appian, Civil Wars, II [II. xv. 102]. 

* See Plutarch, Coriolanus [ix and x=p. 218 A, b]. 

* See Leunclavius, Turkish History. 

* Thus Nestor acquired a woman 

Exempted from the lot 
By the gift of the Greeks. 

[489] That is in the lliad, XI [XI. 626 f.]. But in the Odyssey, XIV [XIV. 232 f.], Ulysses says : 
Excellent Meneaeceus I received [Of this I'd choose what chanced to please my mind], 
But after, by the lot, I much obtained. 

Euripides says of Cassandra [Trojan Wotnen, line 249] : 

Her the elder son of Atreus made his special prize. 

On what ' was chosen' from the spoil for the Athenian general Demosthenes, that is, was given hira 
by right of pre-eminence, see Thucydides, Book II [III. cxiv]. 

* Whom Julian set as an example for himself and his soldiers ; Ammianus, XXIV [XXIV. iii. 5]. 



Chap. VI] On the Right of Acquiring Things taken in War 679 

With this in mind Isidore, in discussing military law, mentions 
1 The disposition of the booty, the just division in proportion to the 
rank [481] and services of individuals, and the portion of the prince '. 
Tarquinius Superbus, as Livy has it, wished both to enrich himself 
and to win over the affections of the people with spoil. Servilius in 
his speech for Lucius Paulus says that he could have made himself 
wealthy by a division of the booty. There are some writers, among 
whom is Asconius Pedianus, who take the view that the term manubiae 
more correctly designates this share of the commander. 

4. But those commanders have won greater renown who, giving 
up their right, took nothing for themselves from the booty. Such 
was the Fabricius whom I have mentioned, who ' despised wealth, 
even when acquired justly, in comparison with fame ' ; and this he 
declared that he did after the example of Valerius Publicola and 
some others. 

These commanders were imitated also by Marcus Porcius Cato 
in his victory over the Spaniards, when he declared that none of the 
spoils of war would come into his hands, with the exception of those 
things which he had consumed in food and drink ; and yet he added 
that he did not blame the commanders who had made use of the 
privileges conceded to them, but that he preferred to rival the best 
in point of virtue rather than the richest in point of wealth. Very 
nearly the same praise was merited by those who took of the spoil 
in moderation, as Pompey, who is praised by Cato in Lucan : 

More than he withheld 
Did he contribute. 



[xxxvii. 
10]. 

[On 

Cicero's] 
Against 
Verres, III 
[I. lix. 
154]. 



Plutarch, 
Marcus 
Cato [the 
Elder, x = 
p. 342 A]. 



5. Sometimes in making the distribution account was taken of 
the absent also, as Fabius Ambustus decided at the capture of Auxur. 
Sometimes, too, for some reason in such a distribution no account 
was taken of certain persons even though they were present ; this 
was the case with the army of Minucius, in the dictatorship of Cin- 
cinnatus. 

6. Furthermore this right, which the commanders had enjoyed 
under the old republic, after the fall of the republic appears from 
Justinian's Code to have passed to the masters of the soldiers ; for 
under the Code there are exempted from inclusion in the reports of 
military exploits the largesses of movable objects or those capable 
of locomotion. These the masters of the soldiers grant to their 
troops from the spoils of the enemy, whether in the actual conduct 
of wars or in places in which they are known to be stationed. 

7. But this kind of division in olden times was often exposed 
to calumny, as though by this means leaders were seeking to win 
the goodwill of individuals. On such grounds charges were brought 



Livy, IV 

[lix. 8]. 



Livy, III 

[xxix. 2]. 



68o 



On thc Law of War and Peace 



[Book III 



Dion. 
Hal., VI 
[xxx], and 
VII rixiii]. 
Liw 
[xxxii. 8]. 

Dionysius 
of Halicar- 
nassus, 



Dion. 
Hal., IV 

. IV 
[xlvii. 4]. 

f, V. 
xxi. 14.] 
Dionysius, 
IV; VI 

I.\;iv]; 
xi]. 

Livv, 
XLVI 
[XLIV. 

[Livv, 
XLV. 
xxxiv. 1.] 
Appian, 
Mithrida- 
tic Wars 

rxii. 85]. 

[I. xlv. 

85] 



VI [V. 
xx. 6]. 



against Servilius, Coriolanus, and Camillus, that they had granted 
largesses to their friends and clients from the public funds. In reply 
they defended themselves on the ground of the public advantage, 
1 that those, who had shared in the undertaking, after having gathered 
the fruit of their labours, might be the more ready to enter upon 
other campaigns ' if we may cite the words of Dionysius of Hali- 
carnassus on this matter. 

XVIII. Or commanders may permit pillaging 

1. I now come to pillaging. This was conceded to the soldiers 
either in the devastation of a country, or after a battle, or after the 
storming of a town, with permission to scatter at a given signal. 
It was a practice rather unusual in early times, yet it did not lack 
examples. Tarquin gave over Suessa to his soldiers for pillage ; 
Quintus Servilius, the dictator, the camp of the Aequians ; Camillus, 
the city of Veii ; the consul Servilius, the camp of the Volscians. 
Also Lucius Valerius permitted pillaging in the land of the Aequians, 
Quintus Fabius, after the rout of the Volscians, and after the capture 
of Ecetra. Such pillaging was aftenvard permitted by others on many 
occasions. 

Upon the defeat of Perseus, the consul Paulus granted the spoil 
of the beaten army to the infantry, and the booty of the surrounding 
country to the cavalry. The same consul, in accordance with a decree 
of the Senate, gave over the cities of Epirus x to the soldiers to plunder. 
When Tigranes was conquered, Lucullus 2 for a considerable time 
restrained his troops from collecting spoils, but later, when victory 
was assured, he yielded the right to plunder the enemy. Cicero, in 
his first book On Invention, among the ways of acquiring ownership, 
includes the capture of anything from the enemy, when a public 
sale of this booty has not taken place. 3 

2. Those who condemn this practice [482] say that hands 
greedy for pillage ' will snatch away the rewards of brave warriors, 
since it usually happens that the more slothful man takes to plunder ', 4 
while all the bravest ' are wont to seek the chief share of toil and 
peril ' to quote the words of Appius in Livy. Not very different 



1 As Sulla did in the case of Athens ; Appian, Mithridatic Wars [vi. 38]. 

* Plutarch [Lucullus, xxix= p. 511 e] relates that he turned over Tigranocerta for his soldiers to 
plunder, and besides gave to each man eight hundred drachmas from the spoil. Severus granted his 

the plunder of Ctesiphon ; and likewise ordered the tribunes, officers, and soldiers to keep the 
loot from the villages, as Aelius Spartianus records [Severus, xvi ; Aelius Lampridius, Alexander 
Severus, lv]. 

irned II promised his soldiery the people of Constantinople with the booty and slaves. 
' Y.irro [On Farming, II. x] enumerates six ways by which one may lawfully become pro- 
prietor : through the acquisition of a lawful inheritance, through purchase, cession, usucaption, sale of 
bodty at auction, and public auction, when a penon'l propcr ty is divided and sold. 

* See what we shall cite from Procopius on III. vi. 24.. 



Chap. VI] On the Right of Acquiring Things taken in War 68 1 



is the saying of Cyrus in Xenophon : ' I am well aware that in pillag- 
ing the worse element would get the greater amount.' 

On the opposite side it is said that what each soldier had taken 
from the enemy with his own hand and had carried off home would 
prove to be more acceptable and afford greater pleasure than many 
times as much allotted to him by another's decision. 

3. Sometimes, too, pillaging was permitted because it could not 
be prevented. In the storming of Cortuosa, an Etruscan town, as 
Livy relates : ' The tribunes decided to reserve the booty for the 
state, but the order was slower than the decision ; for already the 
spoil was in the hands of the soldiers, and could not be taken away 
without causing ill-feeling.' So also we read that the camp of the 
Galatians was plundered by the army of Gaius Helvius against the 
will of the commander. 



[Traimng 
of Cyrus, 
VII.il. 

xi.] 
Livy, V 

[xx. 8]. 



VI [iv. 
11]. 



XIX. Or commanders may grant the spoil to others 

The practice already mentioned, that in some cases the booty, 
or money derived from the sale of booty, might be assigned to others 
than the soldiers, usually had as its purpose to make an equivalent 
reimbursement to those who had contributed funds for the war. 

You may also note that public spectacles were at times produced 
with the money derived from the booty. 



nassus, 
V [xlvii]. 



XX. Or commanders, having divided the booty into portions, may em- 
ploy now one method of distribution and now another ; in what way 

1. Not only in different wars are difTerent methods employed 
in the disposition of booty, but in the same war booty is often diverted 
to different uses, after it has been divided into portions or the different 
kinds have been distinguished. 

Thus Camillus gave a tenth of the spoil to the Pythian Apollo, 1 
following a Greek precedent, which had previously come from the 
Jews ; at this time the pontiffs decided that the dedicated tenth 
included not only movable things but also the city and its territory. 
When Camillus was again victor the greatest part of the spoil from 
the Faliscans was assigned to the quaestor ; not so much was given 
to the soldiers. In like manner Lucius Manlius ' either sold the spoil, 
in so far as it had to be contributed to the public treasury, or divided 
it among the soldiers, taking care that it should be as fairly divided 
as possible ' ; the words are those of Livy. 

2. The classes into which booty may be divided are these : 
prisoners, herds, and flocks, which the Greeks when speaking with 



Livy, v 

[xxiii. 8]. 



Livy, V 

[xix. 8]. 



1 This is also recorded by Appian in the Excerpta Peiresciana [ii= Concerning Ilaly, viii. 1]. 



682 



On the Law of War and Peace 



[Book III 



Dionvsius, 
VIII ' 
[IxxxiT. 
Dionvsius, 

X[xxi]. 



Ibid. 



Livy, X 

[Dion. 
Halic, 
X. xxv]. 



Livy, V 
[xxii. i]. 



VI [iv. 

2-3l. 

[Livy, VI. 
xiii.6.] 

Dionysius, 

Fragments 

[SeUctions 

on Embas- 

sies, p. 18]. 

Livv, 

XXV [xiv. 

12-13]. 

Appian, 

Punic 

Wars 

[". 133]. 

Livy, 

XXXVII 

[v. 3]. 

Livy, 

XXXVIII 

[xxiii. 10]. 



exactness call ' pillageable property ' ; money, and other movables, 
costly or cheap. 

Quintus Fabius, after defeating the Volscians, gave orders that 
the pillageable property and spoils be sold by the quaestor ; he him- 
self brought back the money. The same general, after the conquest 
of the Volscians and the Aequians, gave the captives, with the excep- 
tion of the Tusculans, to the soldiers, and permitted them to carry 
ofT the population and the herds in the land belonging to Ecetra. 
When Antium was captured, Lucius Cornelius deposited in the 
treasury the gold, silver, and copper, sold the prisoners and booty 
through the agency of the quaestor, and allowed the troops to have 
articles of food and clothing. Similar to this was the policy of Cin- 
cinnatus, who, after taking Corbio, a town of the Aequians, sent the 
more valuable objects in the booty to Rome, and divided the rest 
among the centuries. 

After the capture of Veii Camillus contributed nothing to the 
public treasury except the money from the sale of the captives ; and 
when the Etruscans were beaten and the captives sold, from the money 
thus obtained he paid back to the women the gold they had con- 
tributed, and set up three libation saucers of gold in the Capitoline 
temple. When Cossus was dictator, all the booty from the Volscians, 
except the persons of freemen, was granted to the soldiers. 

3. Fabricius, after conquering the Lucanians, Bruttians, and 
Samnites, enriched his troops, paid back the war taxes to the citizens, 
and contributed forty talents to the public treasury. 1 Quintus 
Fulvius and Appius Claudius, when the camp of Hanno was captured, 
sold the booty and made a division, giving largesses to those whose 
services had been exceptional. On the taking of Carthage, Scipio 
gave what was in the city to the troops to plunder, excepting the 
gold and silver [483] and the votive offerings. Acilius, on the 
capture of Lamia, in part divided and in part sold the spoil. When 
the Galatians had been beaten and the arms of the enemy burned 
in accordance with a Roman superstition, Gnaeus Manlius ordered 
all to bring together the rest of the spoil, and either sold it, in so far 
as it was to be brought to the public treasury, or divided it among 
the soldiers, taking care that the division should be as fair as possible. 



XXI. The committing of peculation in the distribution of booty 

1. From what we have said it appears that among the Romans, 
not less than among most other nations, booty was the property of 
the Roman people, but that some right of decision as to its dis- 



1 Fabius did likewise with the money from the sale of the prisoners after the capture of Tarentum, 
although he distributed the rest of the spoil to the soldiers. 



Chap. VI] On the Right of Acquiring Things taken in War 683 



tribution was granted to commanders ; nevertheless, as we have 
previouslv stated, under the condition that they owed to the people 
an accounting for their actions. This, among other things, we 
learn from the case of Lucius Scipio, who was condemned in a trial 
for peculation, because, as Valerius Maximus states, he had received 
480,000 sesterces in silver more than he transferred to the treasury ; 
and also from the cases of others to which we have previously referred. 

2. Marcus Cato, in the speech which he wrote on the subject 
of booty, according to Gellius, complained in passionate and noble 
language of the impunity and licence accorded to peculation. Of 
the speech there remains this fragment : ' Those who steal from 
private persons pass their days in bonds and fetters ; those who 
steal from the state pass theirs in gold and purple.' 

On another occasion the same speaker had said that ' he wondered 
that any one dared to place as furniture in his house statues that had 
been captured in war '. Cicero also increases resentment at the 
peculation of Verres, by pointing out that he had carried off a statue 
which in fact had been taken from the spoil of the enemy. 

3. Not commanders alone, but even soldiers, were held on the 
charge of misappropriation of booty if they had not brought it to 
the public treasury ; for, as Polybius says, they were all bound by 
an oath ' that no one would appropriate anything from the booty, 
but would carry out his pledge in scrupulous regard for his oath '. 
To this we may perhaps refer the formula of the oath in Gellius, by 
which, within the lines of the army or within the range of about ten 
miles, the soldier was enjoined not to carry orT anything which was 
of greater value than a silver sestertius ; or in case he had taken 
anything of the sort, to bring it to the consul, or to confess the fact 
within the next three days. Hence we may understand what Modes- 
tinus meant by the statement : ' He who has secreted booty captured 
from the enemy is guilty of peculation.' This statement of itself 
should be sufficient to warn interpreters of the law against believing 
that things captured from the enemy are acquired by individuals, 
since it is clear that peculation can only occur in connexion with 
property that is public, sacred, or religious. 

All these considerations clearly lead to the view which we have 
expressed above, that, apart from the civil law, and primarily, what 
is captured in acts of war becomes the property of the people or of 
the king who wages the war. 



Digest, 
XLVIIL 

xiii. 15 
(13). 



XXII. Some change may be made with respect to this common rigbt of 
booty by a legal enactment or by another } s act of will 

1. In the statement just made we said, ' apart from the civil 



684 



On the Law of War and Peace 



[Book III 



2 Muca- 
bees, viii, 
28, 30. 



Calderi- 
nus, Con- 
silia, 85 ; 
Joh. Lu- 
pus, De 
Bello, si 
bene adver- 
tas; Jason, 
On Dig., 
XXX. i. 
9 ; Fran- 
ciscus 4 
Ripa, On 
Dig., XIX 
ii. 1, no. 5 ; 
Covarru- 
On 
Sext, V. 
ult. 4, pt. 
2, 1 
Bonnni, 
Decade V, 
Book IV. 

On Bene- 

fits, IV xv 

[Inst.or , 
XII. vii. 
10.] 

Annals, 
XI. 
viil. 



law ', and ' primarily ', or directly. The former restriction is added 
because with regard to things that have not yet been actually acquired 
a law may ordain in the public interest, whether that legislative act 
is a law of the people, as among the Romans, or the law of a king, 
as among the Jews and elsewhere. Besides, under the name of law 
WC wish to include also custom when rightly introduced. 

The second qualification leads to this, that we may know that 
booty, just as other things, may be conceded by a people to others 
not only after acquisition, but also prior to acquisition, in such a way 
that, when the capture has ensued, the claims thereby arising are 
immediately united in title, as the jurists say. And this concession 
can be made not only to specific persons, but also to classes, as in the 
times of the Maccabees part of the spoil was given to widows, old 
men, and needy wards ; or even to chance persons, after the fashion 
of the things thrown to the mob, which the Roman consuls made the 
property of those who caught them. 

2. Furthermore, this transference of a right, which is brought 
about by a law or grant, is not [484] always a mere gift. It some- 
times represents the fulfilment of a contract ; sometimes either 
a payment of what is owed, or a reimbursement for losses which some 
one has suffered, or compensation for a personal contribution to the 
war in money, or in service, as when allies and subjects serve either 
without any pay or for such pay as does not correspond with their 
service. It is for these reasons, as we see, that an assignment of the 
whole booty, or a part of it, has usually been made. 

XXIII. Thus booty may be granted to allies 

Our jurists, in fact, note that almost everywhere the custom has 
been tacitly followed, that either allies or subjects, who wage war 
without pay, at their own expense and danger, 1 appropriate what 
they capture. In the case of allies 2 the reason is evident, for naturally 
one ally is bound to make good to another the losses which ensue 
from a joint or public enterprise. 

There is also the further consideration that it is hardly customary 
for service to be rendered gratis. ' Thus physicians ', says Seneca, 
1 are paid the price of service, which they earn, because they are 
called from their own affairs and are at our disposal.' Quintilian 
judges the same thing fair in the case of orators, because the very 
giving of their service and time to the business of others deprives 
them of the opportunity of earning in other ways. This is what 
Tacitus called ' Neglecting the affairs of one's house in order that 

. Poland, XIX [= p. 430]. 
Amalasuntha makes use of it in a letter to Justinian ; [Procopius,] Gothic War, I 1 1. iii]. 



Chap. VI] On the Right of Acquiring Things taken in War 685 

one may apply himself to the business of others \ Therefore it is 
credible that, unless some other cause should appear, as for instance 
pure kindness, or a preceding agreement, the hope of enriching 
oneself from the enemy was regarded as recompense for loss and 
service. 1 



XXIV. Booty is often granted to subjects ; with illustration by means 
of various examfiles on land and sea 

1. In the case of subjects the right to booty does not follow 
with equal clearness, because subjects owe their service to their 
state. But this reason is offset by the fact that where not all subjects 
but only a part are in service the latter are entitled to compensation 
from the body of the state for having contributed more service and 
expense than the others, and they are much more entitled to com- 
pensation for losses. In place of this clearly defined compensation 
the expectation of the whole or a part of an uncertain booty is readily, 
and not without reason, conceded. And so the poet writes : 

Let the booty fall to those whose labours earned it. 

2. With respect to allies, there is an example 2 in the Roman 
treaty by which the Latins were admitted to an equal share of the 
booty in the wars which were waged under the auspices of the Roman 
people. So in the war which the Aetolians waged with the Romans 
as their helpers, the cities indeed, and the territory, fell to the Aeto- 
lians, but the captives and movable property to the Romans. After 
the victory over King Ptolemy, Demetrius gave a part of the booty 
to the Athenians. Ambrose, in discussing the story of Abraham, 
shows the fairness of this custom : ' He wisely asserted that a part 
of the gain, as recompense for their toil, should be allotted to those 
who had been with him, perhaps as allies to give him aid.' 

3. With respect to subjects there is an example in the case of 
the Jewish people ; half of the spoil fell to those who had been 
under arms. 3 The soldier of Alexander made his own the booty 
which he had seized from private persons, excepting that he was 
accustomed to bring certain things of special value to the king ; 
hence we see that those who were said to have conspired at Arbela 

1 See Plutarch, Marcellus [viii = p. 302]. 

2 The Roman people furnished the ancient Latins with the third part of the spoil ; Pliny, Book 
XXXIX, v [Natural History, XXXI V. v]. The Swiss cantons divide the spoil according to the proportion 
of the soldiers furnished, as Simler attests. In the war against the Turk, the Pope, the Emperor, and 
the Venetians made the division on the basis of expenditures ; Paruta, VIII. Pompey granted Lesser 
Armenia to Deiotarus, king of Galatia, because he had been an ally in the Mithridatic War [Eutropius, 
VI. xiv]. 

3 The Pisans gave a part of the booty to those who had guarded the houses ; Chalcocondylas, 
Book V [V = p. 244]. 



Livy, IV 
andXXIV 

[II. xxxiii]; 
Dion. 
Hal., VI 
[xcvj . 
Polvbius, 
XI [X. 
xvi-xvii] ; 
Livy, 
XXXIII 
[xiii. 10]. 
Plutarch, 
Demetrius, 
[xvii = p. 
896 a]. 
On Abra- 
hatn, I. iii 
[17]. 

Numbers, 
xxii [xxxi], 

27, 47 ; 
j Sam., 

XXX. 22, 

and later ; 
2 Macca- 
bees, viii. 

28, 30. 
Plutarch, 
Apo- 
thegms 

[ = p. 180 
c]. 



686 



On the Law of War and Peace 



[Book III 



: iii. xi. 

23.] 

2 Sam. ,xii. 
30. 

Title On 
tht King. 



Arias, De 
BeUo, no. 
162; Bel- 
lini.pt. II, 
tit. xviii, 
no. 3; 
Doneau, 
Conxnxen- 
taries, IV. 
xxi; 

Sylvester, 
word 
bellunt, 1. 
pr., from 
Trova- 
mala. 
Wesen- 
beck, On 
Institutes, 
II. i. 17. 
Appian, 
CivilWars, 

I[vi.5x]. 
[Pharsa- 
lia,] VII 
[738 .]. 



Appian, 
CivilWars, 

IV[ X vii. 
135]. 



Tacitus, 
Historus, 
III [xix]. 



were accused of claiming for themselves all the booty, so that they 
would bring nothing into the treasury. 

4. But in the case of Alexander's army what had been the 
public property of the enemy, or royal property, was exempt from 
this licence. In consequence we read that, when the Macedonians 
had broken into the camp of Darius at the river Pyramus, they 
carried ofl a huge amount of gold and silver, and left nothing un- 
touched except the king's tent, 1 ' in order that ', says Curtius, ' follow- 
ing the traditional custom, they might receive the victor in the tent 
of the vanquished king.' Similar to this was the custom of the Jews, 
who placed the crown of the conquered ruler upon the victorious 
king and [485], as we read in the Digest of the Talmud, allotted to 
him the royal furniture taken in the war. 

In the same category is that which we read in the exploits of 
Charlemagne ; when he had conquered the Hungarians, the riches of 
private individuals fell to the soldiers, the riches of the king to the 
public treasury. But among the Greeks the ' booty ' was public pro- 
perty, as we have shown above, and the ' spoils seized while fighting ' 
were the property of individuals. They call ' spoils seized while 
fighting ' (a-KvXa) what is taken from the enemy in the course of the 
battle, and ' booty ' (kdcfavpa) what is taken afterwards. This 
distinction is observed also by some other peoples. 

5. However, from what we have said before it is quite clear that 
among the Romans, at least in the period of the early republic, not 
so much was granted to the soldiers. In the civil wars they began 
to receive somewhat greater indulgence. Thus you may read that 
Aeculanum was sacked by the soldiers of Sulla. After the battle 
of Pharsalus Caesar turned the camp of Pompey's forces over to his 
soldiers to plunder, according to Lucan, with these words : 

Your reward for bloodshed remains. 

This it is my part to point out ; for I shall not call a donation 

What each to himself shall give. 

The troops of Octavian and Anthony pillaged the camp of 
Brutus and Cassius. In another civil war, when the Flavians had 
been led to Cremona, although night was at hand, they hastened to 
take the rich colony by assault. They feared that otherwise the 
riches of Cremona would come into the possession of the prefects 
and legates ; for they knew that in fact, as Tacitus says, ' the spoil 
of a city that has been stormed belongs to the soldiers ; that of one 
which has been surrendered, to the general '. 



1 See also Diodorus, Book VI [XVII. xxxv], and Plutarch, Alexander [xx=p. 676]. See similar 
ints in Xenophon, On the Training of Cyrus, II [IV. vi. 11], and Book IV of his war [Anabasis, 
IV. iv. ai] and \ 



Chap. VI] On the Right of A cquiring Things taken in War 687 

6. As discipline declined such looting was the more willingly 
conceded to the troops, that they might not neglect the enemy 
and burden their hands with spoil while there was still danger. 
Disregard of such precaution has made very many victories fruitless. 

When Corbulo had stormed the fort Volandum in Armenia, 
' the mob unfit for war ', as Tacitus relates, ' was sold at auction, 
and the rest of the booty fell to the victors '. According to the same 
writer, in a battle in Britain Suetonius urges his men to continue 
the slaughter without thinking of the booty, adding that when the 
victory should be won everything would fall to their lot. Similar 
accounts you may find among other authors generally. Add also 
what we have just cited from Procopius. 1 

7. There are, however, certain things of so slight value that 
they are not worth making public property. These things every- 
where by consent of the people belong to those who take them. 
Such under the early Roman republic were spears, javelins, firewood, 
fodder, water-skins, leathern money-bags, torches, and money smaller 
than a silver sestertius ; for we read in Gellius that these exceptions 
were added to the military oath. 

Very like this concession is that which is made to sailors even 
when they are paid for their service. The French call this spoliation 
or pillage, and therein include clothing, and gold and silver under 
ten crowns. Elsewhere a certain part of the booty is given to the 
soldiers, as in Spain, where now a fifth, 2 now a third, and again 
a half remains with the king, and a seventh, or at times a tenth, 
with the commander of the army ; the rest belongs to the individual 
captors, with the exception of ships of war, 3 which fall wholly to 
the king. 

8. It may happen also that the division of the booty is made 
after account has been taken of services, dangers, and expenses, as 
among the Italians, where a third of a captured ship falls to the 
master of the victorious vessel, an equal part to those whose goods 
were in the ship, and the same to those who engaged in the fighting. 

Sometimes, again, this occurs, that those who conduct a war 
at their own risk and expense do not receive all the spoil, but owe 
a part to the public authority, or to him who derives his right from 
the public authority. Thus among the Spaniards, when in a war 



Tacitus, 
Annals, 
XIII 

[xxxix]. 
Annals, 
XIV 

[xxxvi]. 



XVI. iv. 



Constitu- 
tions of 
France, 
XX. xiii. 
10 and 16. 

Law of 
Spain, IV. 
xx vi. 2. 



Consolato 
del Mare, 
cclxxxv. 



1 He records, Vandalic War, II [II. xxi], that when Solomon was carrying on war against the 
Levathae his soldiers were angry with him because he held back the spoil. He said [490] that he 
did this in order that, when the war was ended, he might distribute it according to each man's deserts. 
Procopius says also, Gothic War, II [II. vii], that all the spoil from Picenum was brought to Belisarius, 
who divided it on the basis of merit, and adds the reason : ' It was not fair that some, at the cost of 
much effort, should kill the bees, while others, at their ease, should feed upon the honey.' 

2 This custom is attributed to the Turks also by Leunclavius, [Turkish Hislory,] III and V. 

8 So among the Goths an exception was made of engines of war for the kings ; Johan Magnus, 
Historia Suedica, XI. xi [Barbeyrac believes this a misquotation]. 

1569.27 3 A 



688 



On the Law of War and Peace 



[Book III 



[Law of 

Spain,] 

XIX. 

XXVI 

14. 

Constitu- 
ttons of 
France, 
XX. xiv. 
1. 

Instruc- 
tiones Rei 
:imae, 
xxii. 



[Institutes 
ofOratory,] 

[V.x.114]. 



ships are fltted out at private expense, part of the spoil is due to the 
king, and part to the highest naval authority. According to the 
French practice the latter receives a tenth, and the same [486] 
is customary among the Dutch, but with them a fifth part of the 
booty is first deducted by the state. On land, however, it is now 
the general custom that in the sack of towns, or in battle, each should 
have as his own what he has taken ; but what is taken in raids should 
be the common property of those in the detachment, to be divided 
among themselves according to their rank. 

XXV, The application of what has heen said 

As a result of these considerations we are to know that, if within 
the jurisdiction of a nation that is not involved in war a dispute 
arises with respect to something that has been captured in war, the 
thing is to be adjudged to him whose case is supported by the laws 
or customs of the people on whose side capture has been effected ; 
if this is impracticable, then by the common law of nations the thing 
is to be adjudged to the people itself, provided only that it has been 
taken in an act of war. 

From what we have previously said, it is abundantly clear that 
what Quintilian adduces in favour of the Thebans is in general not 
true, that in a matter which can be brought into court the right of 
war does not hold good, and that what is taken by armed force can 
only be retained by armed force. 



III. vi. 5. 



Livv, LV 
[XLV. 

xliv. II]. 



XXVI. Whether things which have been taken outside the territory of 
either belligerent may be acquired by the law of war 

1. Things which do not belong to the enemy, even if found 
among the enemy, 1 do not become the property of the captors ; for 
this, as we have said already, is not in accordance with the law of 
nature and has not been introduced by the law of nations. Thus 
the Romans say to Prusias : ' If this territory had not belonged to 
Antiochus, clearly it would not have been made territory of the 
Roman people.' 2 Nevertheless if in such things the enemy enjoys 
any right which is connected with possession, as a right of pledge, 
restraint, or servitude, there is nothing to prevent this right being 
acquired by the captors. 

2. The question is also often raised whether things captured 
outside the territory of either belligerent may become the property 



^ee above, III. iv. 7. 
1 Thus, after Ju^nirtha was conquered, Bocchus did not acquire the land which had not belonged 
to Jugurtha, but to the children of Bocchus [or rather Massinissa] ; Appian, Selections on Etnbassies, 
xxviii [ = Sumidian Ajffairs, iv]. See a similar instance in Krantz, Saxonica, XII [XII. vii]. 



Chap. VI] On the Right of Acquiring Things taken in War 689 

of the captors ; and this is debated with regard both to things and 
to persons. 

If we take into account the law of nations only, I think that 
this subject need not be considered, since we have said that an enemy 
may be justly slain in any place. But he who holds authority in 
a place may by a law of his own prohibit any such action ; and if 
such an act is committed contrary to his law he can demand satis- 
faction for it as for a crime. Similar to this is the ruling that a wild 
animal caught on the land of another belongs to the captors, but 
access to it may be prohibited by the owner of the land. 



Dig. XLI. 
i. 3. 

Dig. VIII. 
iii. 16. 



XXVII. In what way the right of which we have spoken is peculiar to 
a public war 

Now this external right of acquiring things taken in war is so 
peculiar to a war that is public according to the law of nations that 
in other wars it finds no place. For in other wars with foreigners 
property is not acquired by the violence of war but as compensation 
for a debt which cannot otherwise be obtained. 

In wars between citizens, whether these be great or small, no 
change of ownership is made except by the authority of a judge. 



Sylvester, 
word bel- 

*w, 1, 3 
and 11, 
verse 8. 



3 A2 



CHAPTER VII 



Dig. I. 



Digest, 
XI. IX. xv. 
5- 1- 
Digcst, 
XLIX.xv. 

12. 

[II. lviii.] 



That 
Every 
Virtuons 
Man is 
Free [iii]. 
Orations, 
xv >p. 



ON THE RIGHT OVER PRISONERS OF WAR 

I. According to the lazu of nations all persons captured in a war that is 
public hecome slaves 

1. By nature at any rate, that is, apart from a human act, or 
in the primitive condition of nature, no human being.s are slaves, as 
we have said elsewhere. 1 In this sense it is correct to accept what 
was said by the jurists, that slavery is contrary to nature. Neverthe- 
less, as we have shown also in another connexion, 2 it is not in conflict 
with natural justice that slavery should have its origin in a human 
act, that is, should arise from a convention or a crime. 

2. But in the law of nations, which we are now discussing, 
slavery has a somewhat larger place, both as regards persons and as 
regards effects. For if we consider persons, not only those who 
surrender themselves, or promise to become slaves, are regarded as 
slaves, but all without exception who have been captured in a formal 
public war become slaves from the time when they are brought within 
the lines, as Pomponius says. And no crime is requisite, but the fate 
of all is the same, even of those who by their ill-fortune, as we have 
said, are caught in the enemy's territory when war has suddenly 
broken out. 

3. Polybius says in the second book of his Histories: ' What 
should these persons sufTer so as to pay a fitting penalty ? Perhaps, 
one would say, being sold as slaves with wives and children, after 
they have been conquered in war. But this is also appointed by the 
law of war 3 for those to endure who have done no impious deed.' 
Hence comes what Philo notes in these words : ' Often at unforeseen 
times many good men have lost their inherited freedom.' 

4. Dio of Prusa, after enumerating the ways of acquiring 
[491] ownership, says : ' And a third form of possession is when- 
ever one has taken a prisoner in war and in this way holds him as 

1 II. xxii. 11. * II. v. 27. 

Servius, On the Aeneid, I fl. 619], says of Hercules : ' When Laomedon tried to ward him from 
this gate, he was killed, and his daughter, Hesione, was carried off in accordance with the law of war, 
and delivered toTelamon, Hercules's comrade, who had first scaled the wall ; of this union Teucer was 
the issue.' Again, On the Aeneid, X [X. 91], in telling the same story : ' The Greeks refused to restore 
Hesione to the Trojans, saying that they held her by the law of war.' 

Josephus, in Book XIV [Antiquities of the Jews, XIV. xii. 2], says : * Since they had not been 
captured in accordance with the law of war.' * By the law of captives ' and elsewhere, ' By the law 
established for prisoners of war ', says Menander Protector ffrag. 29, p. 66, edit. DindorfJ. 

In the preceding chapter you find much that is applicable also here, for the reason that writers 
either combine, or treat identically, captured things and captive men. 

690 



Chap. VII] On the Right over Prisoners of War 



691 



a slave.' So Oppian in his second book On Fishery calls it a law of 
war to carry off into slavery boys that have been captured in war. 

II. Also the descendants of persons captured in zvar hecome slaves 

Not only do the prisoners of war themselves become slaves, but 
also their descendants for ever, that is to say those who are born of 
a slave mother after her enslavement. This is what Marcianus said, 
that by the law of nations those become our slaves who are born of 
our slave women. In speaking of the wife of a German chief, Tacitus 
said that her womb was subject to slavery. 

III. What may be done to prisoners of war zoith impunity 

1. Moreover the efTects of this law are unlimited, just as Seneca 
the Father said that there is nothing which a master is not permitted 
to do to his slave. There is no sufTering which may not be inflicted 
with impunity upon such slaves, no action which they may not be 
ordered, or forced by torture, to do, in any way whatsoever ; even 
brutality on the part of masters towards persons of servile status is 
unpunishable except in so far as municipal law sets a limit and a 
penalty for brutality. ' Among all nations alike ', says Gaius, ' we 
may see that masters have had the power of life and death over 
slaves.' Then he adds that limits have been set to this power by the 
Roman law, that is on Roman soil. Here applies the note of Donatus 
on Terence, ' What is it not lawful for a master to do to his slave ? ' 

2. Also everything that has been captured is acquired, along 
with the person, for the master. The slave who is himself under the 
power of another, says Justinian, can have nothing of his own. 

IV. The property of captives, even if incorporeal, belongs to their 
master 

On these grounds the view of those who say that incorporeal 
rights are not acquired by the law of war * is refuted, or at any rate 
restricted. It is true that such rights are not acquired primarily 
and directly, but through the medium of the person to whom they 
had belonged. 

Nevertheless, we have to make exception of those rights which 
have their source in a peculiar capacity of the person and are hence 
inalienable, as the right of the father. For if these rights can remain, 
they remain with the person ; if not, they are extinguished. 

1 Valerius Maximus, VI. ix. it, says of Gnaeus Cornelius Asina : ' As consul he was captured by 
the Carthaginians at the Lipara Islands. after he had lost everything by the law of war.' ' The slave 
has lost the right of ownership over other things not less than over himself,' says Philo, That Every 
Virtuous Man is Free [vii]. 



[Halieu- 

tica, 

II.316] 



Dig. I. v. 
3-fi. 

Annals, I 

[lix]. 



Contro- 
versies, I. 
v [X. v]. 



Dig. I. vi. 
1. 1. 
Institutes, 
I. viii. 1. 

[On\ 
Andria, 
Act I, 

scene i 

[36]. 

Inst. II. 
ix. 3- 



692 On the Law of War and Peace [Booklll 

V. The reason why the law has thus been established 

i. All these rights have been introduced by the law of nations, 
with which we are dealing, for no other reason than this : that the 
captors, mollified by so many advantages, might willingly refrain 
from recourse to the utmost degree of severity, in accordance with 
which they could have slain the captives, either immediately or after 
a delay, as we have said before. ' The name of slaves (servi) ', says 
Dig. l. Pomponius, ' comes from the fact l that commanders are accustomed 

xvi. 239. t0 se ]i prisoners and thereby to save them (servare) and not to kill 
them.' I have said ' that they might willingly refrain ' ; for there 
is no suggestion of an agreement whereby they may be compelled 
to refrain, if you are considering this law of nations, but a method 
of persuading them by indicating the more advantageous course. 

2. For the same reason this right is transferred to others, just 
as the ownership of things. Further, it has been agreed that owner- 
ship should be extended to children ; the reason is that otherwise, 
if the captors had used their full right, the children would not have 
been born. . Whence it follows that children who were born before 
the catastrophe do not become slaves, unless they are themselyes 
captured. 

Moreover, it has been acceptable to the nations that children 
should follow the status of the mother, for the reason that the unions 
of slaves were regulated neither by law nor by definite oversight, 
and consequently the father was indicated by no adequate pre- 
sumption. In this sense we are to understand the statement of 

Dig. 1. v. Ulpian : ' It is a law of nature, that he who is born outside of lawful 

24 ' matrimony follows the status of his mother ' ; that is, the law repre- 

sents a general custom which has grown up from a natural reason, 

11. xiii. just as we have elsewhere shown that the term ' law of nature ' is 

26 - at times employed with some inexactness. 

3. The rights under consideration, moreover, have not been 
introduced by the nations in vain. This we may perceive from 
what happens in civil wars, in which we find that on many occasions 
captives [492] have been killed because they could not be reduced 

[xiv= P . to slavery. The fact is noted by Plutarch in his Otho, and by 
!.. 73 ~ , Tacitus in the second book of his Histories. 2 

4. Whether those who have been captured become the pro- 
perty of the people, or of individuals, must be decided by what we 
have said in regard to booty ; for in this case the law of nations has 

1 See also Servius, On the Aeneid, Book V [IV. 327], where he explains the origin of the word saltem. 
* Also in Book III [III. xxxiv], regarding the captured inhabitants of Cremona, whom ' the united 
opinion of Italy had caused to be a prey useless to the soldiers'. 



(II. xliv.] 



Chap. VII] On the Right over Prisoners of War 



693 



put men in the same category as things. Gaius the jurist said in his 
Daily Questions, Book II : * Also what is captured from the enemy 
becomes at once, by the law of nations, the property of the captors, 
to the extent indeed that even free men are led off into slaverv.' 



Dig. XLI. 
i. 5 and 7. 



VI. Whether it is permissible for those who have been captured to fiee 

1. Nevertheless, as regards the belief of some theologians, that 
it is unlawful for those to flee who have been captured in an unlawful 
war, or are born of captives, unless they flee to their own people, 
I have myself no doubt that the view is erroneous. There is indeed 
this difference, that if captives make their escape to their own people 
while the war is still in progress they attain their freedom by right 
of postliminy ; x if they flee to others, or to their own people, after 
peace has been made, they must be given up to the master who 
claims them. But it does not follow as a consequence that a bond 
of conscience is laid also upon the captives ; there are many rights 
whiGh look only to an external judgement, and such are the rights 
of war which we are now explaining. 

There is, further, no reason for any one to raise the objection 
that from the nature of ownership such an obligation becomes bind- 
ing on the mind. For I shall reply that, since there are many forms 
of ownership, it is possible that one may exist which is valid only 
in a judgement that is human and at the same time continues a con- 
dition which arises also in other kinds of rights. 

2. Such in fact, to some extent, is also the right of nullifying 
wills, on account of the lack of some formality which the civil laws 
prescribe. The more acceptable view is, that what has been left by 
such a will may be retained with a clear conscience, at least as long 
as the will is not contested. 

Not very different is the ownership of one who in accordance 
with the civil laws has exercised prescription in bad faith ; for his 
ownership also is protected by the civil courts. By making the dis- 
tinction, we easily loosen the knot which Aristotle ties in his Sophistical 
Refutations, Book II, chapter v : ' Is it not right for each one to have 
what is his own ? But what any judge may decide according to his 
opinion, even if this be false, is valid according to the law. There- 
fore the same thing is both right and wrong.' 

3. In the question before us no reason can be imagined why the 
nations should have had in view anything else than that external 
restraint. For the opportunity of claiming a slave and restraining 



Lessius, I. 
v, dub. 5. 



Soto, De 
Iustitia et 
Iure, IV, 
qu. iv, art. 
3 ; Les- 
sius, II, 
xiv,dub.3. 



[Sophisti- 
cal Refuta- 
tions, xxv. 
9.] 



1 See below, III. ix. 5. Pliny, Natural History, VII. xxviii, says of Marcus Sergius: 'Twice 
captured by Hannibal, he twice escaped from his chains.' 



6 9 4 



On the Law of War and Peace 



[Book III 



Digest, 

XLIX.xv. 

26. 



Digest, 
XUX.it. 
19. pr. 



Baiiez, 
On II. ii, 
qu. 40. 



Decretum, 
II. xvii.4. 
37 f. 



him, and further, of putting him in bonds and retaining his property, 
was enough to induce captors to spare captives. If the captors were 
so ferocious as not to be influenced by these advantages, certainly 
they would not have been aflected by the imposition of any moral 
restraint. Yet, if they believed such a restraint at all necessary for 
themselves, they could have exacted an assurance or an oath. 1 

4. However, in a law which has been established not according 
to natural equity, but to avoid a greater evil, we should not rashly 
adopt an interpretation which would make criminal an act otherwise 
permitted. Florentinus the jurist says : s It makes no diiference how 
a captive has returned ; whether he has been set free, or has escaped 
from the power of the enemy by force or by guile.' This is so because 
the right of captivity is of such a sort, that in another sense it is 
often also a wrong, a characterization which is applied to it by the 
jurist Paul. It is a right in respect to certain effects ; a wrong, if 
wc regard its intrinsic nature. 

Hence this also is apparent. If any one who has been captured 
in an unlawful war has come into the power of the enemy, his con- 
science is not tainted by the crime of theft if he secretly takes away 
his own property, or a recompense for his toil, 2 in case it is right 
that any should be furnished him over and above his keep, provided 
that he neither in his own name, nor in that of his state, is in any 
way [493] indebted to his master, or to him whose right his 
master has received. And it does not matter that such flight and 
abstraction when detected are usually punished with severity. For 
these things and many others are done by the more powerful, not 
because they are just, but because it is to the advantage of the more 
powerful to do them. 

5. Certain canons 3 forbid any one to persuade a slave to desert 
his master's service. If you refer this to slaves who are undergoing 
a just punishment, or have bound themselves by a voluntary agree- 
ment, it is a just injunction. But if you refer it to those who have 

1 Bembo, Hislory, X, holds that the soul is not tainted by the crime of theft, if one removes 
his own propertv. 

2 Here applies what we have quoted above from Irenaeus and Tertullian, in the notes to II. vii. 2, 
where there is a discussion regarding the Jews after their exodus from Egypt. 

To these the following relates, from Philo's On the Life of Moses [I. xxvj : ' Moreover when they 
were being driven out and pursued, being mindful of their noble race, they began a work worthy of 
freeborn inen, who had not forgotten what they had suffered through injustice and deceit. [495.] 
For they carried forth much spoil, in part on their persons and in part on beasts of burden. Their 
motive was not avarice. nor, as some calumniator has said, greed of another's property for whence 
could this have occurTed to them ? but they desired, first, to have the pay which was necessary for so 
long a period of service ; and in the second place, they sought in recompense for servitude forcibly 
imposed upon them a penalty, not commensurate with lt, but far less.' And more that follows in the 
same author. 

There is a similar story of St. Malchus given by Jerome in his Letlers, and of the Lombard Leupges, 
which his great-grandson Paul Warnefrid [Paulus Diaconus] tells us in Book IV [IV. xxxix]. Add also, 
if you please, the Confession published under the name Lanicius Patricius. 

' 1' I xi of Gangres. See above II. v. end. 



Chap. VII] On the Right over Prisoners of War 695 

been captured in an unlawful war, or have been born of captives, it 
teaches that Christians should encourage Christians to be patient 
rather than to engage in an action which, although permissible, might 
yet offend minds alien to Christianity or otherwise weak. 

In a similar way we may understand the admonitions of the 
Apostles to slaves, except that these are seen rather to demand 
obedience from slaves while in servitude. This is in accord with 
natural justice ; for food and service have a reciprocal connexion. 

VII. Whether it is permissihle for those who have heen captured to 
resist their master 

But I think that it was correctly said by the theologians to whom 
I have just referred, that a slave cannot resist a master who is exercis- 
ing that external right without violating the duty of justice. 

Between this case and that which we have just discussed there 
is a manifest difference. The external right, which consists not only 
in impunity of acting but also in the protection of the courts, will 
be of no effect if a right to offer resistance remains on the other side. 
For if it is permissible forcibly to resist a master, it will also be per- 
missible forcibly to resist a magistrate who protects the master, 
when, nevertheless, according to the law of nations, the magistrate 
should defend the master in such ownership and the enjoyment 
thereof. This right therefore is like that which we have elsewhere 
attributed to the highest authorities in each state, in saying that it 
is not legally nor morally permissible forcibly to resist them. Thus 
Augustine also joined the two rights when he said : ' Princes are to 
be endured by the commons, and masters by their slaves, in such 
a way that temporal things may be borne in the exercise of long- 
suifering, and things eternal may be hoped for.' 

VIII. The lazv under consideration has not always existed among all 
nations 

But the fact must further be recognized that this law of nations 
with regard to captives has not always been accepted, nor accepted 
among all nations, although the Roman jurists speak of it as universal, 
designating the more prominent part by the name of the whole. 
Thus among the Jews, 1 who by their special institutions were separated 
from the common practice of other peoples, there was an asylum for Deut 
slaves ; at least, as the commentators rightly note, for slaves who had 
come into this unhappy condition through no fault of their own. 

From such a source it seems that there may have arisen the 

1 See [Moses de Kotzi,] Precepts Forbidding, 180. 



xxin. 15. 



6 9 6 



On the Law of War and Peace 



[Book III 



Bodin, 
De Repub- 
lica, I. v. 



Bartolus, 
On Digest, 
XLIX.xv. 

Co- 
varnivias, 
OnSc 
ult. 4. Pt. 
ii, ii, no. 
6; Vic- 
toria, De 
Iure Belli, 
no. 42 ; 
Bohier, 
Decisions, 
clxxviii ; 
Sylvester, 
word beU 
lum, 1, 
no. 1. 
[Grego- 
ras,] IV 
[ix]. 

Plato, 
Republic, 

V[xv = 

469 ej. 

Bartolus, 

On Digest, 

III. v. 20; 

Bohier, 

Decisions, 

clxxviii ; 

Constitu- 

tiones 

Regni His- 

Paniae, 

VHI.xxvi. 



right of claiming their freedom which is given to slaves in the countiy 
of the Franks ; although we see that this is now granted not only 
to those captured in war, but also to other slaves of any sort. 

IX. The law under consideration does not now exist among Christians ; 
what has heen substituted for it 

1. Christians * furthermore have as a whole agreed that those 
who are captured in a war which has arisen among themselves do not 
become slaves so as to be liable to be sold, constrained to labour, 
and sufTer the fate of slaves in other respects. In this they are surely 
right, because they have been, or should have been, better instructed 
in the teachings of Him who has sanctioned all charity than to be 
unable to be restrained from the slaughter of unfortunate men in 
any other way than by the concession of a lesser cruelty. 

Gregoras 2 writes that this treatment of captives in former times 
was handed down from ancestors to descendants among those who 
professed the same religious belief, and that it was not peculiar to 
those who lived under Roman rule but was also common to Thessalians, 
Illyrians, Triballians, and Bulgars. And so this degree of progress at 
any rate, small though it is, has been accomplished by reverence for 
the law of Christ ; a degree of progress which Socrates [494] 
failed to secure, although he had recommended such treatment of 
captives by the Greeks among themselves. 

2. Moreover, the practice of Christians in this matter is followed 
also by Mohammedans among themselves. 3 Nevertheless, even 
among Christians the custom still prevails of keeping prisoners under 
guard until a ransom is paid, the amount of which is decided by the 
victor, unless some definite agreement has been made. 

Furthermore the right of guarding captives is usually granted 
to the individuals who have taken them, except in the case of persons 
of high rank ; for the customs of most nations give the right over 
these to the state or its head. 

1 And also the Essenes, from whom the first Christians originated. See Josephus [Antiquities of 
the Jews, XVIII. i. 5]. 

* Gregoras, Book IV [IV. ix], where these words are found : ' This is a custom which has descended 
from antiquity to posterity, and has never been corrupted, not only among the Greco-Romans and 
Thessalians, but also among the Illyrians, Triballians, and Bulgars, because of a belief common to all, 
that it is permissible to collect plunder, but not to make men prisoners nor to kill them after the time 
of battle.' 

Adam of Bremen says of Saint Ansgar : ' Thence he returned to Hammaburg and reproved the 
peoples north of the Elbe for the sale of Christians.' Bohier also mentions this custom, Decisions, clxxviii, 
and adds that it is a practice in France, England, and Spain, that if the prisoner is a duke, count, or 
baron, he does not belong to the soldiers but to the ruler who is waging the war. 

Chalcocondylas, Book III ; Leunclavius, Books III and XVII ; Busbecq, Epistolae Exolicae, iii. 



CHAPTER VIII 



sies, X. 
v. 15-] 



ON THE RIGHT TO RULE OVER THE CONQUERED 

I. By zvar also civil authority is acquired, sometimes as vested in a king, 
sometimes as vested in a people ; the effects of such acquisition 

1. It is not at all strange if he, who can subject individuals to 
himself in personal servitude, is able to subject to himself an aggrega- 
tion of men whether they formed a state, or a part of a state in 
a subjection which may be purely civil, or purely personal, or mixed. 

Some one in Seneca's Controversy about a native of Olynthus 
uses the following argument : * He, whom I purchased in accordance 
with the law of war, is my slave. This, men of Athens, is advan- 
tageous for you ; otherwise your empire, in so far as it has been 
acquired by war, is reduced to its ancient limits.' With similar 
purport Tertullian said that empires are sought by arms and expanded 
by victories. Quintilian declares that kingdoms, peoples, and the 
territories of nations and cities, depend upon the law of war. In 
Curtius, Alexander says that laws are laid down by the victors and 
accepted by the vanquished. 

In his speech to the Romans Minio asks : [496] ' Why do 
you send a praetor every year with authority and rods and axes to 
Syracuse and the other Greek cities of Sicily? Clearly, you would 
say, for no other reason than this, that you have imposed these laws 
upon those who have been conquered in war.' In Caesar Ariovistus 
says : ' It is the law of war that those who have conquered should 
rule those whom they have conquered, just as they please ' ; also : 
' The Roman people has been accustomed to rule the conquered, 
not according to another's dictation but according to its own 
judgement.' 

2. Justin, quoting from Trogus, relates that up to the time of [M. 70 
Ninus those who waged war had sought for themselves not sovereignty 

but glory, and, being content with victory, had abstained from 
empire ; that Ninus was the first who extended the borders of his 
empire, and subjugated other peoples in war ; and that from him 
this had passed into a general custom. Bocchus, in Sallust, declares 
6 that he had taken up arms to protect his kingdom ; for the part of 
Numidia, from which he had expelled Jugurtha, had become his by 
the law of war.' 

3. Sovereignty, furthermore, may be acquired for the victor ; 
either such sovereignty merely as is vested in a king * or other ruler, 

1 After the battle at Gaugamela Alexander was hailed as king of Asia [Plutarch, Alexander, xxxiv 
= p. 685 b]. The Romans asserted that what had belonged to Syphax was theirs ' according to the law 

697 



Livy, 
XXXV 

[xvi. 4]. 



Gallic 
War [I. 

xxxvi] . 



6g8 



On the Law of War and Peace 



[Book III 



I. iii. n. 



and in that case the victor succeeds to the right of the ruler only, 
and nothing beyond ; or such as is vested in a people, 1 in which case 
the victor holds sovereignty in such a way that he can even alienate 
it, just as the people could. We have elsewhere said that thus it 
has come about that certain kingdoms were held as a patrimony. 



;vn. xiv.] 



[Excerpta 
ex Trag. 
et Com. 
Gr., edit. 
Grotius, 

P- 639] 
Annals, 
XII [xi]. 
[Agesilaus, 
i. 22.] 



II. The right of a master may be acquired over a people, which then 
ceases to be a state 

1. Even a more fundamental change may be accomplished, so 
that, for instance, what was a state may cease to be a state. In such 
cases the state that was may become an accession of another state, 
as the Roman provinces did ; or it may not be attached to a state, 
as when a king waging war at his own expense so subjects a people 
to himself that he wishes it to be governed not for the good of the 
people but above all else for that of the ruler, and this is the rule 
of a master, not of civil authority. 

In his Politics, Book VII, Aristotle says : ' There is govern- 
ment . . . for the good of the ruler, and government for the good of the 
ruled. The former is the government of masters and slaves ; the 
latter, the government of free men.' A people, then, which is subject 
to a power of this kind, will for the future be no state, but a great 
domestic establishment. It has been well said by Anaxandrides : 

A state of slaves, good sir, nowhere exists. 

2. The two types of authority are thus contrasted by Tacitus : 
' To conceive himself as a governor among freemen, not as a despot 
among slaves.' Of Agesilaus Xenophon says : ' The states which he 
brought under his authority he relieved of all the obligations which 



of war ' ; Appian, Selections on Embassies, X. xxviii. In Agathias, Book I [I. v], the ambassadors of the 
Goths said of Theodoric : ' Since he had conquered Odoacer, the stranger from Scyros, he held by the law 
of war all that had been his.' But when the Huns claimed that the Gepidae were their subjects, because 
they had captured the king of thc Gepidae, the Romans denied this claim on the ground that the 
Gepidae had a chief rather than a king, and that they did not form a part of his patrimony. This is 
recorded by Menander Protector [frag. 28, pp. 63-5, edit. DindorfJ. 

1 In the same writer Menander [frag. 46, p. 92], the Persians say with regard to the territory of the 
city of Daras : ' Since the city itself had been conquered by them according to the law of war, it was 
reasonable that what had been subject to it should belong to them.' Afterthe conquest of the Vandals, 
Belisarius claimed that even Lilybaeum in Sicily should yield to the Roman authority, on the ground 
that the Goths had given it to the Vandals. But the Goths denied that they had so given it ; Procopius, 
Vandalic War, II [II. v]. 

Henry, son of Frederick Barbarossa, after having captured Sicily, laid claim to Epidamnus, 
Saloniki, and other places held by the Sicilians; Nicetas, On Alexis, brother of Isaac [Comnenus], 
Book I f I. vii]. Baianus, Chagan of the Avars, said to the emperor with regard to Sirmium : [498] 
' That that city belonged to him, seeing that it had belonged to the Gepidae, who had been conquered 
by the Avars ' [Menander, frag. 64, p 127, edit. DindorfJ. 

Peter, the ambassador of Justinian, said in a speech to Chosroes : ' For how shall he who is lord 
of the principal not be lord of the accessory ilto } Fot noither the Lazi nor the Suani ever raised a dis- 
pute on this point, that Suania has not from antiquity belonged to the Lazi ' [Menander, frag. 1 1, p. 26, 
edit. DindorfJ. Each of these citations is from Menander Protector. Add what is in III. viii. 4. 



Chap. VIII] On the Right to Rule over the Conquered 699 

slaves render to their masters, and he exacted from them only the 
things in which freemen obey their rulers.' 

III. Sometimes the two types of authority are mixed 

Hence we may understand the nature of that mixed authority, 
which I have said is in part civil and in part that of a master, that is 
to say, an authority in which servitude is mixed with a degree of 
personal liberty. Thus we read that arms have been taken from 
peoples ; that peoples have been forbidden to have any iron except 
for agricultural purposes ; and that other peoples have been com- 
pelled to change their language and manner of life. 

IV. The possessions of a people, even such as are incorporeal, are also 
acquired ; herewith is discussed the question of the written bond of 
the Thessalians 

1. Moreover, just as the possessions which belonged to indi- 
viduals are, in accordance with the law of war, acquired by those 
who place the owners in subjection to themselves, so also the posses- 
sions of the aggregation of individuals as a whole become the property 
of those who subject the aggregation to themselves, if they so wish. 
Livy says in regard to those who have capitulated : ' In case all 
possessions have been surrendered to him who is superior in arms, 1 
the victor has the absolute right to decide what he wishes the van- 
quished to keep, and of what he wishes to deprive them ' ; and this 
statement holds true of those who are conquered in a public war. 
Surrender in fact voluntarily permits what force would otherwise 
take. 

In Livy Scaptius says that ' the land under [497] dispute 
had been a part of the territory of the Coriolani ; and when Corioli 
was captured, by the law of war it became public land of the Roman 
people.' Hannibal, in a speech to his soldiers, recorded by the same 
author, declared : ' All the possessions of the Romans, won and 
amassed in so many triumphs, will become ours along with the masters 
themselves.' The same author makes Antiochus say : * Since, when 
Lysimachus was conquered, all his possessions were transferred to 
Seleucus in accordance with the law of war, he thought that they 

1 See above, I. iv. 8 [I. iii. 8] ; II. v. 31 ; and III. v. 2, and below, III. xx. 49. Add also the follow- 
ing from Polybius, Selections on Embassies, cxlii : 

' Those who surrender themselves to the Roman authority, first give up the territory which was 
theirs, and the cities within that territory, then all men and women who are in this territory or these 
cities ; finally. all rivers, harbours, everything sacred and hallowed in its entirety, so that the Romans 
are masters of all, but those who have surrendered themselves are masters of nothing at all.' 

See what has just been said, III. vii. 4. Justin, in Book XXXV [XXXVI. iii. 8], speaking of the 
Jews, says : ' Afterwards along with the Persians themselves they passed under the sway of Alexander 
the Great.' 



700 



On the Law of War and Peace 



[Book III 



Strabo, 
XII [iii. 

x]. 



Dionysius 
of Halicar- 
nassus, III 

[xxxi]. 



[Inst. 0r., 
V. x. 116.] 



Dig. L. 
xvii. 118. 

Digest, 

XLVIII. 

V. 22. 



Cicero, 
Letters to 
Brutus, vi 



were now under his rule.' Similarly Pompey acquired for the Roman 
people what Mithridates had captured in war and had annexed to 
his empire. 

2. Consequently, the incorporeal rights also, which had be- 
longed to the aggregation as a whole, will become the property of 
the victor, in so far as he wishes. Thus when Alba was conquered 
the Romans claimed for themselves the rights which the Albans had 
exercised. 

Hence it follows that the Thessalians were entirely acquitted of 
their debt of one hundred talents. Although they owed this sum to 
the Thebans, upon becoming master of Thebes, Alexander the Great, 
by right of victory, made the Thessalians a present of it. Nor is 
that true which is adduced on behalf of the Thebans in Quintilian, 
that only what the victor himself holds is his, but a right that is 
incorporeal cannot be seized by force ; and that the position of an 
heir and that of a conqueror are fundamentally different, because 
a right passes to the former, but only property to the latter. In 
fact he who is master of persons is also master of their possessions 
and of every right which pertains to the persons. He who is the 
possession of another does not possess for himself, and he who is 
not his own master does not have anything in his own power. 

3. Furthermore, if any one should leave to a conquered people 
the right to form a state, he might still take for himself certain things 
which had belonged to the state. It rests with him to decide what 
he wishes the measure of his beneficence to be. Caesar imitated the 
act of Alexander by making to the people of Dyrrachium a present 
of the debt which they owed to some one of the opposite party. In 
this case, however, the objection might have been raised that the war 
of Caesar was not of the kind in respect to which this law of nations 
has been established. 1 



1 Anthony ordered the Tyrians to restore the territories of the Jews which had not been granted 
them by the Roman senate and which had not been held prior to the war of Cassius. This is recorded 
by Josephus [Antiquilies of the Jews, XIV. xii. 4]. See also Bizarri, History of Genoa, X. 



CHAPTER IX 



ON POSTLIMINY 



I. The origin of the word postliminy 

1. Just as in regard to those things which are captured from 
the enemy, so also in regard to the right of postliminy (postliminium) 
no very sound view has been advanced by those who in more recent 
times have laid claim to a knowledge of the law. The subject was 
treated with greater painstaking by the ancient Romans, but often 
rather confusedly, so that the reader could not distinguish what they 
ascribed to the law of nations and what to the Roman civil law. 

2. With regard to [499] the word postliminium we must 
reject the view of Servius [Servius Sulpicius], who thinks that the 
latter part is a lengthening of the word without significance ; we must 
rather follow Scaevola, who taught that the word was a compound 
of post, which indicates a return, and limen. 1 ' For limen (threshold) 
and limes (boundary) difTer in ending and manner of declension, 
although for the rest they are identical in origin for they come 
from the ancient word limo, 2 which signified transversum (across) 
and in original idea, just as materia and materies, pavus and pavo, 
contagio and contages? cucumis and cucumer ; although in later usage 
it developed that limen referred rather to private, limes to public 
things. So the ancient word which meant ' to eject from a country ' 
was eliminare, and the Romans called exile eliminium.* 



Cicero, 
Topics 
[viii. 36], 
and Boe- 
thius 
thereon. 



II. Where postliminy may occur 

1. Postliminy, therefore, is a right which arises from a return 
to the threshold, 5 that is, to.the public boundaries. Thus Pomponius Digest, 
says that he who has begun to be within our fortified lines has returned 



XLIX. xv. 

5-i. 



1 Whence the name Postvorta Dea [Aulus Gellius, Altic Nights, XVI. xvii]. 

2 Servius, On the Aeneid, XII [XII. 120], and Donatus, On [Terence's] Eunuch, on the phrase limis 
oculis [III. v. 63]. Festus : ' Limus, " oblique ", that is, " transverse ", whence also limina.' 

Isidore [Etymologies], XV. xiv : ' Limites are called from the ancient word for "across", for 
everything that was " across" the ancients called litna, from which comes the limina ostiorum, through 
which one goes out and in ; and limites because by them one goes out into the fields.' In the Glossary, 
limes is translated as ir\ayia u56s [Corpus Glossariorum Latinorum, vol. II, p. 123]. 

3 Compages and compago, a word which itself was formerly compagen, as we see from its genitive 
case, and the verb derived from it, just as sanguis was formerly sanguen. 

4 And colliminium in Solinus [chap. xvj is what is commonly called collimitium. 

6 Hence, Tertullian, On Modesty [xv], metaphorically speaking says : ' The postliminy of the peace 
of the Church.' 

701 



702 



On the Law of War and Peace 



[Book III 



Digest, 
XLIX. xv 
19- 3- 



Polvbius, 



Plutarch, 
Flaminius 
;.xiii=p. 
376 F]. 



by postliminy ; Paul defihes such a return when the captive has 
entered our frontier. 

On similar grounds the agreement of nations has brought the 
matter to this point, that postliminy occurs also if a man, or a thing 
of the sort in regard to which it has been decided that postliminy 
is possible, has come to our friends, as Pomponius says in the passage 
cited ; or, as Paul explains by ofFering an example, to a king who 
is our ally or friend. In these passages we are to understand as 
friends or allies not merely those with whom we are at peace, 1 but 
those who take the same side in a war. Those who come to such 
friends, as Paul says, begin to be protected in the name of the state. 
It makes no difference in fact whether a man or thing has come to 
them or to his own people. 

2. Among those who are friends, it is true, but not on the 
same side, prisoners of war do not change their status unless by 
a special arrangement. Thus in the second treaty drawn up between 
the Romans and the Carthaginians it was agreed that if any prisoners 
taken by the Carthaginians from peoples who were friends of Rome 
should reach ports subject to the Romans their freedom could be 
asserted, and that the friends of Carthage should enjoy an equal 
right. In consequence those Romans who were captured in the 
second Punic War and had come to Greece by way of sale did not 
have the right of postliminy there, 2 because in that war the Greeks 
had supported neither side, and hence it was necessary for the captives 
to be ransomed in order to be set free. In Homer, too, in more than 
one passage we see that those captured in war were sold in places 
that were at peace, as Lycaon, Iliad, XXI [lines 35 ff.], and 
Eurymedusa, Odyssey, VII [lines 8 ff.]. 



Pompeius 
Festus [on 
the word 
postlimi- 



III. By postliminy some things return and some things are recovered 

The ancient Roman mode of speech had it that free men also 
were recovered by postliminy. 

Aelius Gallus, in the Terms Which Apply to the Law, Book I, says that by postliminy 
there is recovered (for we must adopt this reading) the freeman who has gone from one 
state into another, and returns to the same state, according to the law established in 
regard to postliminy. The same is true of the slave who has gone from us into the power 
of the enemy, and afterwards returns to us and into the power of his former master, 
according to the law of postliminy. The same reasoning is applied to a horse, to a mule, 
and to a ship in recovery by postliminy (for so I think that with a slight change we may 



1 That this was the view of the king of Morocco and Fez, appears from De Thou, Book CXXX 
[CXXX. iii]. on the year 1603. 

* Valerius Maximus, V. xi. 6 ; Diodorus Siculus, Selections on Embassies, iii. So also the Rhodians 
as an act of generosity restored to Athens the Athenian citizens whom they had bought during the 
war of Athens with Philip ; Polybius, Selcctions on Embassies, iii. 



Chap. IX] 



On Postliminy 



703 



retain these three words which that incomparable student of the Roman law, Jacques 
Cujas, thinks should be deleted) as to a slave ; and the same kinds of things, which return 
from the enemy to us by postliminy, may return from us to the enemy. 

The later Roman jurists, however, with greater clarity have 
distinguished two forms of postliminy, according as we ourselves 
return, or something is recovered by us. 



[Observa- 
tions, XI. 
xxiii.] 



Digest, 
XLIX. xv. 

14. 



IV. The right of postliminy exists in peace and in war. What is to 
be done if it has not been mentioned in time of peace ? 

1. We must, further, maintain the view of Tryphoninus, who 
says that the right of postliminy [500] is effective both in war 
and in peace ; the meaning is slightly different from that with which 
Pomponius had said the same thing. 

In peace postliminy, unless it is otherwise agreed, exists for 
those who have not been conquered by armed force, but caught 
by their ill-fortune, 1 as those who are found in the land of the enemy 
when war has suddenly broken out. For other captives, however, 
there is not postliminy in time of peace, unless this was provided 
for in the terms of peace 2 (according to the excellent emendation 
of the passage of Tryphoninus by the learned Peter Faber, of which 
Cujas approves) ; for the reason which is added and the contrasted 
clause clearly decide this. 

* He made peace, releasing the prisoners, for so it had been 
agreed,' says Zonaras. Pomponius says : ' If a prisoner, for whose 
return in time of peace a guarantee had been given, remains with 
the enemy of his own accord, for him there is subsequently no post- 
liminy.' Paul states the matter thus : ' If a prisoner of war has fled 
to his home after peace has been made, by postliminy he returns 



Digest, 
XLIX. xv. 
12. 

Digest, 
XLIX. xv. 
5, cited 
above. 



Semestria, 
I. vii. 



Vol. III. 

Digest, 
XLIX. xv. 

20. 



Digest, 
XLIX.xv. 



1 See the example in Paruta, On the War in Cyprus, I. 

2 See Josephus, Antiquities of the Jews, XIII. ii [XIII. ii. 3]. Polybius mentions agreements 
providing for the restoration of captives in the peace with Philip, with the Aetolians, although in 
this case with an exception, and with Antiochus ; Selections on Embassies, ix, xxviii and xxxv 
[=Histories, XVIII. xliv; XXI. xxx ; XXI. xlv]. Livy [XXXIV. xxxv. 4] furnishes the same 
examples, and an additional example in the peace with Nabis. 

Zosimus offers several similar instances, as, for example, the peace of Probus with the Burgundians 
and the Vandals, which began thus : ' Upon condition that they should restore all the booty and all 
the prisoners which they had,' Book I [I. lxviii]. He records a similar peace between Julian and the 
Germans [III. ivj, and likewise with the Quadi, who were in Germany, Book III [III. vii]. 

Ammianus Marcellinus in Book XVII [XVII. x. 3-4] says of Suomarius, king of the Alemanni : 
' On bended knees he sought peace, and obtained it, with forgiveness for the past, upon condition 
that he should restore our captives.' Shortly afterwards [XVII. xii. 11] he says of the Sarmatians : 
4 Upon being ordered to occupy without fear the lands they held, they restored our prisoners.' In 
another passage he says the same with regard to another part of the Sarmatians. 

In Zonaras there are many such instances. Among others, in the history of Michael, son of 
Theophilus, speaking of the Bulgarian king this author says [XVI. vi. 3] : [507] ' He promised to 
release his prisoners of war.' Nicetas in Book II [Manuel Comnenus, II. viii] says that all the prisoners 
were set free, except the Corinthians and Thebans, men and women. 

Sometimes it was agreed that prisoners who were held by the state should be restored, as in 
Thucydides, V [V. xviii]. 



1569.27 



3b 



XLIX.xv 

12.] 



704 On the Law of War and Peace [Booklll 

to him vvho captured him in the late war, provided that it has 
not been agreed in the terms of peace that prisoners should be 
restored.' 

2. As indicating the reason why the view just stated came to 
be held with reference to those who have been captured by valour 
in war, Tryphoninus quotes the following from Servius, ' that the 
Romans preferred that their citizens should place their hope of 
return in military prowess rather than in terms of peace ', for from 

[xxii. antiquity they were in truth, as Livy says, a state by no means merciful 
to prisoners. But this reason characteristic of the Romans could 
not have established the law of nations, though it might have been 
among the causes that led the Romans to embrace that law which 
had been developed by other nations. 

The truer explanation is this, that kings and peoples who under- 
take war wish that their reasons for so doing should be believed to 
be just, and that, on the other hand, those who bear arms against 
them are doing wrong. Now since each party wished this to be 
believed, and it was not safe for those who desired to preserve peace 
to intervene, peoples at peace were unable to do better than to 
accept the outcome as right, 1 and also to consider prisoners thus 
taken in the act of defending themselves as captured for a just 
reason. 

3. But the same thing could not be said with regard to those 
who were caught [in hostile territory] after war had broken out ; 
for in them no desire to injure could be imagined. Nevertheless it 
seemed not unfair that while the war lasted they should be detained, 
in order to lessen the strength of the enemy ; but when the ending 
of the war had been arranged no reason could be offered for not 
releasing them. Consequently this was agreed upon, that with 
peace such prisoners should always obtain their liberty on the ground 
that they were innocent, by admission of the parties ; but that over 
the others each should assert what he wished to be considered 
his right, except in so far as agreements should prescribe definite 
stipulations. 

For the same reason neither slaves 2 nor things taken in war 
are restored with peace, unless this has been stipulated in agree- 
ments, since the victor wishes it to be believed that he had the right 
to seek these things. To controvert this principle would in truth 
be to make wars spring up from wars. 

1 Sce Priscus, Excerpta Legalionibus, xxvm, and Bizarri, on the War between Genoa and Venice 
[On the Venelian War], Book II. 

1 Totila declared to Pelagius, the deacon whom the Romans had sent to him, that he would 
not discuss the question of the restoration of the slaves of the Sicilians, saying that it would be unjust 
>C Komans [i.e., Goths] to give up their fellow soldiers to their old masters. The passage is in 
,pius,] Gothic War, III [III. xvi]. 



Chap. IX] 



On Postliminy 



705 



In the light of these considerations it is clear that the argument 
in Quintilian on behalf of the Thebans was ingeniously presented, 
but not in accordance with the truth, that is, that prisoners are free 
if they have returned to their own country, because things won in 
war may only be held by the same use of force. We have said enough 
with regard to peace. 

4. In war men who were free before being captured return 
by postliminy ; * but slaves and certain other things are recovered. 



[Inst. Or., 

v.x.115.] 



V. When a free man may return by postliminy while war is in progress 

A free man returns by postliminy only when he has come to 
his own people with the purpose of sharing their fortunes, as the 
principle was stated by Tryphoninus. The reason undoubtedly is 
that for a slave to become free he must, so to speak, acquire himself, 
which is not done unless he wishes it. But it makes no difference 
whether a man has been recovered from the enemy by force of arms, 2 
or has escaped by a ruse, as Florentinus has pointed out. It will 
even be sufficient if he has been voluntarily handed over by the 
enemy. 

What happens if [501] a man comes to his own people after 
being sold in trade by the enemy, 3 as the custom is ? This question 
is discussed by Seneca, 4 in the case of the Olynthian who was pur- 
chased by Parrhasius. Since a decree had been issued by the Athenians 
whereby it was ordered that the Olynthians should be free, he inquires 
whether it was provided in the decree that they should be made 
free or should be considered free ; the latter of the two interpreta- 
tions is more correct. 



Digest, 
XLIX.xv. 

12. 9, and 
5- 3, 
cited 
above. 



Digest, 
XLIX. xv. 
26. 
Code, 
VIII. 1. 5. 



VI. What rights a free man returning by fostliminy may recover, 
and what he may not recover 

1. A free man, moreover, after he has returned to his own 
people, not only acquires himself for himself, but also all the posses- 
sions, whether corporeal or incorporeal, which he had when the 
peoples were at peace. Peoples at peace accept the fact as indicating 
a right in the case of the man who has been set free just the same 



1 Julian, in his oration Against the False Cynics [Orations, vi=p. 195], says: ' In this way even 
the prisoners of war whom we set free would be slaves. But to such the laws grant freedom when 
they have returned to us.' 

2 As those, who had been captured by the Slavs and were set free by the Huns, likewise in 
Procopius, Gothic War, III [III. xiii]. 

8 As in the same book of Procopius [III. xiv], the young Childubius said : ' Since he had returned 
to his own country, for the future he would be a free man in the eyes of the law.' But Leunclavius 
[Turkish History, XIV] notes that among the Turks there was formerly no right of postlbiiny for 
prisoners of war. 

4 Controversies, V. xxxiv [X. v]. 

3 B2 



706 



On the Law of War and Peace 



[Book III 



as in the case of the prisoner, in order that they may show them- 
selves fair to both sides. Therefore the proprietorship, which he 
who possessed the prisoner by the law of war had over the prisoner's 
possessions, was not free from all limitation ; it could in fact cease 
against his will, if the prisoner should reach his own country. Con- 
sequently, the possessor of the prisoner loses these things just as he 
loses the man to whom they belonged. 

2. But what if the possessor of the prisoner has alienated the 
prisoner's possessions ? Will he, who has his title from the man that 
was at the time owner by the law of war, be protected by the law 
of nations, or will these things also be recovered ? I am speaking of 
the things which were with a people that did not participate in 
the war. 

It seems clear that we must distinguish between things which 
are of such a kind that they may return by postliminy, and those 
which are not of that kind. This distinction we shall shortly explain, 
so that the things of the former class will seem to have been alienated 
with a characteristic cause and under a condition, but the latter 
absolutely. By alienated things I understand also things which 
have been granted or acknowledged as received. 



Digest, 
XLIX.xv. 
12. 6; 6. 



VII. Rights against afree man returning by postliminy also are restored 

Again, just as rights are restored to him who has returned by 
postliminy, so also rights are revived against him ; and, as Trypho- 
ninus says, such are held just as if he had never been in the power 
of the enemy. 



Digest, 
XI. IX. xv. 

17- 



[VI. xviii.] 



XLIX.xv. 
19. | I. 

XLIX.xv. 
4- 



VIII. Why those who surrender do not have the right of postliminy 

To this rule in regard to free men Paul justly adds the following 
exception : ' Those who have been conquered in battle and have 
surrendered to the enemy do not possess the right of postliminy.' 
This is doubtless for the reason that agreements with the enemy are 
valid by the law of nations, as we shall say elsewhere, and against 
such agreements no right of postliminy holds. 

Thus in Gellius those Romans who had been captured by the 
Carthaginians say that ' They did not have legal postliminy, since 
they were bound by their oath '. Wherefore, as Paul has propcrly 
pointed out, there is no postliminy during the period of an armistice. 
But Modestinus delivered the opinion that those who are given up 
to the enemy, that is without any agreement, return by postliminy. 



Chap. IX] 



On Postliminy 



707 



IX. When a people may have the right of postliminy 

1. What we have said in regard to individual persons holds 
true, I think, in the case of peoples also ; those who were free may 
recover their liberty in case the power of their allies delivers them 
from the rule of the enemy. But if the population, which formed 
the state, has been dispersed, I think it more correct not to consider 
the people as the same, nor to restore their property by postliminy 
in accordance with the law of nations, for the reason that a people, 
like a ship, obviously perishes by the dissolution of its parts, since its 
whole nature consists in perpetual union. 

That was, then, not the same state of Saguntum which previously 
existed, when this site was restored, eight years later, to the former 
inhabitants. It was, again, not the same Thebes, after the Thebans 
had been sold into slaverv by Alexander. Hence it is apparent that 
what the Thessalians hacf owed the Thebans was not restored to the 
Thebans by postliminy, and that for two reasons : first, because it 
was a new people ; and, secondly, because Alexander, at the time 
when he was their master, was able to alienate this right and did 
so. There is a further reason, that a debt is not in the number of 
the things which return by postliminy. 

2. With what we have said regarding a state [502] agrees 
closely the fact that according to the ancient Roman law, by which 
the dissolution of marriage was permitted, it was held that the 
marriage relation was not restored by postliminy, 1 but renewed by 
a new agreement. 



Digest, 
XLIX. xv. 

8; 14. 1. 



X. What are the provisions of the municipal law in the case of those 
who return by postliminy 

1 . From the preceding discussion the nature of postliminy may 
be understood according to the law of nations, as regards free men. 
But by municipal law that same right, in so far as it affects what is 
done within a state, may both be restricted by the addition of excep- 
tions and conditions and extended to other interests. Thus, by the 
Roman civil law, deserters are excluded from the number of those 
who return by postliminy, even the sons of households over whom 
apparently the authority of the father, which was peculiar to the 



Digest, 
XLIX. xv. 

19- 4 
and 7. 



1 Otherwise among Christian people?. Pope Leo wrote to Nicetas, Bishop of Aquileia [Leo the 
Great, Letters, clix] : ' So that, just as postliminy is observed in the case of slaves or land, or even 
in the case of houses and other property, for those who have been led into captivity and have returned 
from captivity former marriages may be re-established, even if the parties have been united to others.' 
See Hincmar, De Divortio Lotharii ei Tetbergae, Interrogation xiii, and the reply of Pope Stephen, 
chapter xix, in Concilia Galliae, II. 



708 



On the Law of War and Peace 



[Book III 



On Ends, I 



Demo- 
sthei: 
Against 
Nicostra- 

:ii. II 
= p. 1249]. 



Code, 

VIII. I.20. 
Digest, 
XLIX. xv. 
15. 
Codt, 
VIII. I. 
13. 
Code, 
VIII. 1. 7. 



= p. 239.] 



( = p. 242.] 



VIII. I.18. 



Quirites, should have been exercised. But Paul says that this was 
acceptable, because Roman parents valued the discipline of the 
camp above their arTection for their children. This is consistent 
with what Cicero says of Manlius, that through his personal grief he 
sanctioned the discipline of military authority, in order that he might 
have regard for the safety of his fellow citizens, with which he per- 
ceived that his own safety was bound up, and that he set the right 
of public authority above nature herself and the affection of a father. 

The right of postliminy is also in a measure limited by this 
provision, which we read was first established by the Athenian laws, 
then by those of the Romans, that the person who should be ransomed 
from the enemy should serve the one who ransomed him until he 
paid back the price. 1 But this very provision appears to have been 
introduced in the interest of liberty, in order that many might not 
be left in the hands of the enemy because the hope of reimbursement 
in the sums paid as ransom had been cut orT. This kind of servitude 
is in fact mitigated in many ways by the same Roman laws ; and 
finally by the law of Justinian it is terminated with five years' service. 
On the death of the ransomed the right of recovering the money 
also is extinguished, just as it is held to be remitted by the con- 
traction of marriage between the ransomer and the ransomed ; and 
the right is lost by the prostitution of a ransomed woman. Many 
other provisions were established by the Roman law to favour those 
who pay ransom, and to punish the next of kin who do not redeem 
their relatives. 

2. On the other hand, the right of postliminy has been expanded 
by the civil law in this, that not only those things which are included 
in postliminy by the law of nations, but all things, and all rights, 
are treated just as if he who has returned had never been in the 
power of the enemy ; and this was also the practice in Attic law. 
For, as we read in the fifteenth Oration of Dio of Prusa, a certain 
person declared that he was the son of Callias, that he had been taken 
prisoner in the defeat at Acanthus, and had been in slavery in Thrace ; 
after his return to Athens by postliminy, he claimed the inheritance 
of Callias from its possessors, and the only question investigated in 
the trial was whether he was really the son of Callias. The same 
writer records that, although the Messenians had been in slavery for 
a long time, they at length recovered both their liberty and their 
land. 

Further, the things which were deducted from a property by 
usurpation or by liberation, or which seemed to have become extinct 



1 The same provision occurs in Charles the Bald, Edictum Pistense, chap. xxxiv [Monumenta 
Germanica Hislorica, Leges, II. vol. 11, p. 325]. 



Chap. IX] 



On Postliminv 



709 



by non-use, are restored by an action for annulment ; for in the 
edict concerning the complete reinstatement of persons of age there 
is included the man who is in the power of the enemy. This at any 
rate comes from the ancient Roman law. 

3. The Cornelian Law even consulted the interest of the heirs 
of those who had died as prisoners among the enemy, by conserving 
their property just as if the captive who did not return was already 
dead at the time when he was captured. If you should annul these 
civil laws, there is no doubt that as soon as any one had been captured 
by the enemy his property would have fallen to those who should 
seize it, 1 because he who is in the enemy's possession is held to be 
non-existent. If he who had been captured returned, he would 
recover nothing except those things which have postliminy by the 
law of nations. However, the assignment of the goods of prisoners 
to the treasury, if there should be no heir, is the effect of a special 
Roman law. 

[503] We have considered the persons who return ; let us now 
consider the things which are recovered. 



Dig. IV. 
vi. 1. 1. 



Digest, 
XLIX. 
xiv. 31 ; 
xv. 22. 1. 



XI. How slaves are recovered by postliminy, even those who have run 
away ; how those who have been ransomed are recovered 

1. Among recoverable possessions are, first, male and female 
slaves, even when having been often alienated, 2 or after manumission 
by the enemy. 3 The reason is that it is not possible for one of our 
citizens, who is the owner of a slave, to be affected by a manumission 
in accordance with the law of the enemy, as Tryphoninus well observes. 
But for the recovery of a slave, it is necessary that he be actually held 
by his former master, or that he should be easily obtainable. There- 
fore, although in the case of other things it is enough for them to 
have been brought within the frontier, in the case of a slave this 
will not suffice for the right of postliminy, unless the fact is also 
known ; for it is the view of Paul that such a slave who is in Rome, 
but is hidden, is not yet recovered. 

Just as a slave differs in the respect suggested from inanimate 
things, so in turn the slave differs from a free man in this, that for 



1 See the Visigothic Law, V. iv. 15. 

2 But in the Edict of Theodoric [chap. cxlviii] the rule was laid down thus : ' Let slaves or coloni 
who have been captured by the enemy, and have returned, be restored to their masters, unless they 
have been previously acquired by another by purchase f rom the enemy.' See also Cassiodorus, [Variae,] 
III. xliii. 

By the Visigothic Law, however, a slave recovered in war is restored to his master, and he who 
recovered him receives a third of a fair price for him. If he has been recovered after being sold by the 
enemy, he is restored to his master after return of the purchase price and the cost of improvements in 
his condition (V. iv. 21). 

3 As those set free by Mithridates, who were brought back into slavery ; Appian, Mithridaiic 
Wars [ix. 61]. 



7io 



On the Law of War and Peace 



[Book III 



Digest, 

XLIX. 

12. 9- 



Digest, 

XLIX. 
19. 5. 



Code, 
VIII. 1. 



his recovery by postliminy it is not required that he should come 
with the intention of adopting our cause. This in fact is required 
in the case of the man who is going to recover himself, not in the case 
of him who is to be recovered by another ; and, as Sabinus wrote, 
' Every one has a full freedom of choice with regard to his own state, 
but not in relation to the right of his master.' 

2. The Roman law furthermore does not exempt runaway 
slaves from the operation of this law of nations. The master recovers 
his former right over these also, as Paul teaches us, the intent being 
that the exercise of a contrary right should not be so injurious to 
him, who always remains a slave, as fraught with damage for his 
master. In regard to the general treatment of slaves who are recovered 
by the valour of the soldiers, the emperors have stated a principle 
which some persons mistakenly apply to all possessions, that ' We 
should regard those who have been recovered as not having been 
captured, and our soldiers ought to be their defenders, not their 
masters \ 

3. By the Roman law slaves who have been ransomed from the 
enemy become forthwith the property of the person who ransoms 
them ; but when the price has been paid back they are held to 
have been recovered. 

To explain these things in greater detail is the business of the 
interpreters of the civil law. For some points were changed by 
later laws ; and, to induce captured slaves to return, freedom was 
offered immediately to those who had broken a limb, and to others 
after the lapse of five years, as may be seen in the military laws 
collected by Rufus. 



XII. Whcther subjects may be recovered by postliminy 

We are more concerned with this question, whether peoples 
who were subject to a foreign rule also relapse into their former 
relation. 

This may be considered in the case that not he to whom the 
chief command belonged, but some one of his allies, had delivered 
the people from the enemy. In this case I think we must give the 
same answer as in the case of slaves, unless it has been otherwise 
agreed in the treaty of alliance. 



Digest, 

\. xv. 
20. 1. 



XIII. Territory is recovered by postliminy 

1. Among things recoverable we have first to do with territory 
which falls under the right of postliminy. ' It is true ', says Pom- 



Chap. IX] 



On Postliminy 



711 



ponius, ' that when the enemy have been expelled from the terri- 
tory which they have taken the ownership of it returns to the former 
proprietors \ 

Furthermore, the enemy ought to be considered as expelled 
from the time when they are no longer able to approach openly, 
as we have explained elsewhere. Thus the Lacedaemonians restored 
to the early proprietors * the island of Aegina, which had been 
wrested from the Athenians. Justinian and other emperors restored 
to the heirs of the old possessors the lands which had been recovered 
from the Goths and Vandals, and did not admit against the pro- 
prietors those prescriptive rights 2 which the Roman laws had 
introduced. 

2. The law regarding every right which is connected with the 
soil I consider to be the same as that regarding territory. Pomponius 
has written that consecrated and holy places, which have been 
captured by the enemy, if they have been freed from this misfortune, 
are restored to their original condition as though returned by a sort 
of postliminy. With this agrees what Cicero, in the passage on the 
statues in his speech Against Verres, says of the Diana of Segesta : 
' Through the valour of Publius Africanus it recovered its veneration 
together with its seat of worship.' With the right of postliminy 
Marcianus compares [504] the right by which the ground occupied 
by a building is restored to the shore, upon the fall of the building. 

Wherefore we shall be obliged to say that the usufruct of land 
that has been recovered is restored, following the precedent set by 
the response of Pomponius with regard to inundated land. By the 
law of Spain, provision has been made that the holdings of counts 
and other hereditary jurisdictions return by postliminy. The larger 
holdings return without limitation ; the smaller, if they are claimed 
within four years after their recovery, with the exception that the 
king has the right of retaining a castle lost in war and recovered in 
any way at all. 

1 That is, those who were of the Lacedaemonian faction. Cf. what has been said above, III. vi. 7. 

2 And this in accordance with a law of Honorius, who, although he relinquished Spain to the 
Vandals, would not [508] permit a prescription of thirty years to prejudice the proprietors, while 
the Vandals were in occupation of it ; as is recorded by Procopius, Vandalic War, I [I. iii]. Valentinian, 
in his Novel De Episcopali ludicio, says : ' We have ordained that the rights which were preserved 
in perpetuity or for an unlimited number of ages shall be terminated by a limit of thirty years ; with 
the exception of the affairs of Africans, who shall prove that they have been subject to the constraint 
of the Vandals ; so that in their cases there may be deducted from the allotted thirty years such 
time as shall be proven to have been passed under hostile domination.' 

In the Council of Seville, cited in Decretum, II. xvi. 4 [II. xvi. 3. 13], we read : Just as by 
the law of the state their former possessions are restored to those who have returned by postliminy, 
after suffering the cruelty of the barbarians in an enforced captivity.' With this agrees the canon, 
Decretals, II. xxvi. 10. See also Cujas, Paratitla on Code, VII. xxxix. 



Strabo, 
VIII [vi. 
16]. 

Novels, 



copius, 
Vandalic 
War, I 
[iii] ; Cu- 
jas, Obser- 
vations, X 
[xii]. 
Dig. XI. 
vii. 36. 



Dig. I. 
viii. 6. 



Digest, 
VII. iv. 
26. 

Constitu- 
tions of 
France, X. 
xxix. 2. 



712 



On the Law of War and Peace 



[Book III 



ics, 

viii. 37.] 

Digest, 

XLIX.xv. 

2 and 4. 

Digest, 
XXX. i. 9. 

Dig. X. ii. 
22 and 23. 



Bart 
On Dig., 

28; An- 
gelus and 
Saliceto, 
On Code, 
VIII 

Constitu- 
tiones Gal- 
licae, XX. 
xiii. 24 ; 
Comolato 
del Mare, 
cclxxxvii. 



XIV. The distinction that was formerly observed zvith regard to 
movable things 

1. With regard to movable things there is a general rule to 
the contrary, that they do not return by postliminy but belong 
with the spoil ; thus Labeo contrasts such things. Therefore, also, 
what has been acquired in trade, wherever it is found, remains the 
property of him who bought it, and the former owner has not the 
right to reclaim it if it is found among those who are at peace, or 
brought within the frontier. 

In ancient times we see that things which were of use in war 
were excepted from this rule, which the nations seemed to have 
sanctioned, in order that the hope of recovery might render men 
more zealous in procuring them. In those times the institutions of 
very many states were organized for warfare ; wherefore an agree- 
ment was easily reached in this matter. 

Moreover those things are considered to be of use in war which 
we lately cited from Aelius Gallus, but which are more specifically 
designated both in Cicero's Topics and in Modestinus. They are 
warships and transports, but not yachts and fast boats acquired for 
pleasure ; mules, but only such as are pack animals ; horses and mares, 
which have been broken to the bit. And these are possessions which 
the Romans held were legally disposed of in wills, and entered into 
claims for the division of an inheritance. 

2. Arms and clothing are indeed of use in war, but they do not 
return by postliminy because those who lose arms or clothing in war 
are by no means deserving of favour ; in fact such loss was accounted 
a disgrace, as is abundantly clear in the historical writings. But in 
this respect, it is noted, arms differ from a horse, because a horse 
may dash away without fault of his rider. We see, further, that 
this distinction of movables was in force in the west, even under 
the Goths, down to the time of Boethius. For he, in explaining 
Cicero's Topics, seems to speak of this right as one which retained 
its force to his own time. 

XV. What is the current law with regard to movable things ? 

But in recent times, if not previously, the distinction noted 
seems to have been done away with. For those who are familiar 
with customs generally record that movable things do not return 
by postliminy ; and we see in many places that this has been made 
a rule with regard to ships. 1 

1 Decisiones Genuenses, ci. 



Chap. IX] 



On Postliminy 



713 



XVI. What things may be recovered in such a way as not to need 
postliminy 

Things whicb, although seized by the enemy, have not yet been 
brought within his fortifications, have no need of postliminy, because 
by the law of nations they have not yet changed ownership. Also 
things which pirates or brigands have taken from us have no need 
of postliminy, as Ulpian and Javolenus decided ; the reason is that 
the law of nations does not concede to pirates or brigands the power 
to change the right of ownership. 

Relying upon this principle the Athenians wished to receive 
Halonnesus as restored, not as given by Philip, because the pirates 
had taken it from them, and Philip had taken it from the pirates. 1 
So things which have been captured by freebooters may be claimed 
wherever they are found, excepting that, as we have elsewhere held, 
on the basis of the law of nature, he who has obtained possession of 
a thing at his own expense should be reimbursed in the sum which 
the owner himself would have been glad to pay for its recovery. 



II. x. 9, 
above. 



XVII. Charges introduced by municifal law as affecting those subject 
to it 

Nevertheless a different rule may be established by municipal 
law. Thus by [505] the Law of Spain ships captured from pirates 
become the property of those who take them from the pirates. 2 It 
is in fact not unjust that private interests should yield to the public 
advantage, especially when the difficulty of recovery is so great. But 
such a law will not hinder foreigners from claiming their property. 

XVIII. How fostliminy has been observed among those who were not 
enemies 

1. That is more surprising, to which the Roman laws bear 
witness, that the right of postliminy was effective not only among 
enemies, but also between the Romans and foreign peoples. But we 
have said elsewhere that such laws were relics of the nomadic age, 
in which the usages had dulled the natural social sense which exists 
among men. In consequence even among nations which were not 
waging a public war there was a certain licence of war among 
individuals, proclaimed as it were by the usages themselves. To 
prevent this licence from extending to the killing of men, it was 
acceptable that the rights of captivity should be introduced among 



XXXI. 
xxix. 2 
Covarru- 
vias, On 
Sext, V. 
ult. 4, 
pt. n. 2, 
no. 8. 



1 See Philip's very letter in the works of Demosthenes [xii]. 

2 The Venetians had the same law, as appears from the Letters of Du Fresne de la Canaye, vol. I. 



/14 



On the Law of War and Peace 



[Book III 



[I. xl.182.] 

[Festus, 
on the 
word post- 
liminium.] 

Digest, 

XLI.X 



Digest, 

XLIX.xv. 
5. 2. 



Observa- 

xxiii. 



them, and from this it resulted that there was also a place for post- 
liminy, on a diflerent basis than with brigands and pirates, because 
this use of force led to fair agreements which are usually held in 
contempt by brigands and pirates. 

2. Formerly it seems to have been a disputed right whether 
those from an allied people, who are in servitude among us, return 
by postliminy, in case they have made their way home. Thus Cicero 
presents the problem, On the Orator, Book I. Aelius Gallus indeed 
speaks as follows : ' With peoples that are free, and with peoples 
in alliance, and with kings, we have postliminy just as with enemies.' 
On the other hand Proculus declares : ' I have no doubt that allied 
and free peoples are foreign to us ; there is no postliminy between 
us and them.' 

3. I think that a distinction should be made between treaties, 
in order that, if there were any which were entered into for the sake 
of settling or avoiding a public war, these should not for the future 
stand in the way of captivity or of postliminy. If, on the contrary, 
there were treaties containing this provision, that whoever should 
come from one side to the other should be protected in the name of 
the state, then with the abolition of captivity postliminy also should 
cease. It seems to me that Pomponius indicates this, when he says : 

If with any people vve do not have relations of friendship or hospitality, nor a treaty 
made for the sake of friendship, they are not indeed enemies ; but whatever of our belong- 
ings goes to them becomes theirs, and a free man of our people captured by them becomes 
also their slave. It is the same if anything comes to us from them ; and so in this case 
also postliminy is recognized. 

When Pomponius said a ' treaty for the sake of friendship ', he 
showed that there could be other treaties also, in which there is no 
right of hospitality or friendship. That by peoples in alliance with 
one another are to be understood those who have promised friend- 
ship or secure hospitality, is also made abundantly clear by Proculus, 
when he adds : ' For what need then is there of postliminy between 
us and them, when they in our country retain both their liberty and 
the proprietorship of their own possessions as fully as among them- 
selves, and we have the same privileges in their country? ' There- 
fore what follows in Aelius Gallus, that ' There is no postliminy 
with the nations which are under our sway ', as Cujas correctly reads 
it, must be supplied with the addition, ' nor with those with whom 
we have a treaty establishing friendship '. 



Bodin, 
DeRepub- 

lica, I vii. 



XIX. When the right of postliminy may be enforced at the present day 

1. In our times, however, not only among Christians but also 
among most Mohammedans, both the right of captivity apart from 



Chap. IX] On Postliminy 715 

war, and likewise that of postliminy, have disappeared, since the 
necessity for either was removed by the restoration of the force of 
the relationship which nature has wished to prevail among men. 

2. Nevertheless that ancient law of nations could be applied if 
there should be an affair with a people so barbarous that without 
declaration or cause it should consider it lawful to treat in a hostile 
manner all foreigners and their possessions. 

While I was writing these words, a judgement to that effect 
was rendered in the highest chamber at Paris, under the presidency 
[506] of Nicholas of Verdun. The decision held that goods which 
had belonged to French citizens, and had been captured by the 
Algerians, a people accustomed in their maritime depredations to 
attack all others, had changed ownership by the law of war, and 
therefore, when recaptured by others, became the property of those 
who had recovered them. In the same suit this decision was recorded, 
to which we just now referred, that to-day ships are not among the 
things which are recovered by postliminy. 



CHAPTER X 

CAUTIONS IN REGARD TO THINGS WHICH ARE DONE IN AN 
UNLAWFUL WAR 



III. iv. 



[333 f.] 



[Inst. II. 

xxiii. i.] 



[Declama- 
tions, 

cclxxiii.] 



[Fasti, I. 

249 ] 



Works 
[Works 
and Days, 
192 ff.]. 



I. With what meaning a sense of honour may be said toforbid zvhat the 
law permits 

1. I must retrace my steps, and must deprive those who wage 
war of nearly all the privileges which I seemed to grant, yet did not 
grant to them. For when I first set out to explain this part of the 
law of nations I bore witness that many things are said to be ' lawful ' 
or ' permissible ' for the reason that they are done with impunity, 
in part also because coactive tribunals lend to them their authority ; 
things which, nevertheless, either deviate from the rule of right 
(whether this has its basis in law strictly so called, or in the admoni- 
tions of other virtues), or at any rate may be omitted on higher 
grounds and with greater praise among good men. 

2. In the Trojan Women of Seneca, when Pyrrhus says : 

No law the captive spares, nor punishment restrains, 

Agamemnon makes answer : 

What law permits, this sense of shame forbids to do. 

In this passage the sense of shame signifies not so much a regard for 
men and reputation as a regard for what is just and good, or at any 
rate for that which is more just and better. 

So in the Institutes of Justinian we read : ' Bequests in trust 
(Jideicommissa) were so called, because they rested not upon a legal 
obligation, but only upon the sense of honour in those who were 
asked to take charge of them.' In Quintilian the Father, again : 
1 The creditor goes to the surety, without violating his sense of honour, 
only in case he is unable to recover from the debtor.' With this 
meaning you may often see justice associated with the sense of honour. 
[Thus Ovid] : 

Not yet had justice fled before men's guilt ; 
Last of divinities she left the earth, 
And sense of honour in the place of fear 
[509] Ruled o'er the people without force. 



Hesiod sang : 



716 



Nowhere a sense of honour, nowhere golden Justice ; 
The base assail the better wantonly. 



Chap. X] Things which are done in an Unlawful War 717 

The sentence of Plato, in the twelfth book of his Lazvs, ' For 
Justice is called, and truly called, the virgin daughter of Honour ' 
(7rap6evo<z yap cuSov? A1/C77 \4yerai re Kal ovtojs eLprjTat), I would 
emend by Trdpe&pos, so that the sense would be : ' Justice is called 
the councillor of honour, and this has been said with truth.' For 
in another place Plato also speaks thus : ' The deity, fearing for 
the human race, lest it should utterly perish, endowed men with 
a sense of honour and justice, in order that there might be adorn- 
ments of cities and bonds of friendship.' 

In like manner Plutarch calls 'justice' a ' house-companion of 
the sense of honour,' and elsewhere he connects ' sense of honour ' 
and ' justice '. In Dionysius of Halicarnassus, ' sense of honour and 
justice ' are mentioned together. Likewise Josephus also links ' sense 
of honour and equity '. Paul the jurist, too, associates the law of 
nature and the sense of honour. Moreover Cicero draws the boundary 
line between justice and a sense of reverence (verecundia) in this 
way, that it is the function of justice not to do violence to men, 
that of the sense of reverence not to offend them. 

3. The verse which we quoted from Seneca is in complete 
agreement with a statement in his philosophical works : ' How 
limited the innocence to be innocent merely according to the letter 
of the law ? x How much more widely extend the rules of duty 
than the rules of law ? How many things are demanded by devotion 
to gods, country and kin, by kindness, generosity, justice, and good 
faith? Yet all these requirements are outside the statutes of the 
law.' Here you see * law ' distinguished from ' justice ', because he 
considers as law that which is in force in external judgements. 

The same writer elsewhere well illustrates this by taking as an 
example the right of the master over slaves : ' In the case of a slave 
you must consider, not how much he may be made to sufler with 
impunity, but how far such treatment is permitted by the nature 
of justice and goodness, which bids us to spare even captives and those 
bought for a price.' Then : ' Although all things are permissible 
against a slave, yet there is something which the common law of 
living things forbids to be permissible against a human being.' In 
this passage we must again note the different interpretations of the 
term ' to be permissible ', the one external, the other internal. 

1 Seneca, On Benefits, V. xxi; says also : ' Many good things are not covered by any law, and 
find no form of procedure in court, but yet they are protected by the practice of human society, which 
is more potent than any law.' 

Quintilian, Institutes of Oratory, III. viii [III. vi. 84], declares : ' For there are certain things 
which are not naturally praiseworthy, but are permitted by law, as the provision in the Twelve Tables 
that the body of a debtor could be divided among his creditors, a law which public practice repudiates.' 

Cicero, On Duties, III [III. xvii. 68], writes : ' For the laws dispose of sharp practices in one way, 
and philosophers in another ; the laws in so far as they can apply physical force, but philosophers 
in so far as they can apply reason and intelligence.' 



On Cle- 
mency, I. 
xviii. 



7i8 



On the Law of War and Peace 



[Book III 



XXVI 

[xxxi. 2]. 



. 



iii ;ixvi\ 



Digest, 

XLIX.xv. 

19. pr. 

Letters, 

xxxii 

[xxxi. 

XXVIII 
XXIX. i. 

16-17]. 

Orations, 
xv [=p. 
242]. 

[Divine 
Institutes, 



II. Tbe principle stated is applied to the things which we said were 
permitted by the law of nations 

1. Of the same eifect is the distinction which was drawn by 
Marcellus in the Roman Senate : ' What I have done does not enter 
into the discussion, for the law of war defends me in whatever I did 
to the enemy, but what they deserved to suffer ' ; that is, according 
to the standard of that which is just and good. 

Aristotle approves the same distinction when he is discussing 
whether the slavery which originates in war ought to be called just : 
6 Certain people, regarding only a part of what is just (for a law is 
something just), 1 declare that slavery arising through war is just. 
But they do not say absolutely just ; for it may happen that the 
cause of war was not just.' Similar is the saying of Thucydides in 
the speech of the Thebans : ' We do not thus complain regarding 
those whom you slew in battle ; for that fate befell them in accord- 
ance with a kind of law.' 

2. Thus the Roman jurists themselves at times characterize as 
a wrong what they often define as the right of captivity ; and they 
contrast it with natural right. Seneca, having in mind what often 
occurs, says that the name of slave has sprung from a wrong. In 
Livy also the Italians, who retained the things which they had taken 
in war from the Syracusans, are called stubborn in retaining their 
wrongful gains. Dio of Prusa, having said that those captured in 
war recovered their liberty if they returned to their own people, 
[510] adds, ' just as those who were wrongfully in servitude '. 

Lactantius, 2 in speaking of philosophers, says : ' When they are 
discussing the duties that belong to the military life their whole 
argument is adapted not to justice, nor to true virtue, but to this 
life and to the practice of states.' Shortly after, he says that wrongs 
have been legally inflicted by the Romans. 



III. What is done hy reason of an unjust war is unjust from the point 
of view of moral injustice 

In the first place, then, we say that if the cause of a war should 
be unjust, even if the war should have been undertaken in a lawful 

1 Seneca, To Helvia, vi [On Consolation, vii], says : ' Some have acquired for themselves by force of 
arms a right over territory belonging to others.' There seems to be a conflict between ' right ' and 
'belonging to others'. But they may be reconciled, as the text here shows. Consult what is above 
in III. 

: lowever, Augustine in his fourth letter, which is addressed to Marcellinus [Lellers, cxxxviii. 14], 
writes : ' And therefore, if this earthly commonwealth should observe the teachings of Christ, even wars 
would not be waged without kindness.' In dealing with the diverse practices of the Church the lame 
writer says (cf. Decretum, II. xxiii. 1.6]: * Among the true worshippers of God even wars are brought 
to a state of peace.' 



Chap. X] Things which are done in an Unlawful War 719 

way, all acts which arise therefrom are unjust from the point of view 
of moral injustice (interna iniustitia), In consequence the persons 
who knowingly perform such acts, or co-operate in them, are to be 
considered of the number of those who cannot reach the Kingdom 
of Heaven without repentance. True repentance, again, if time and 
means are adequate, absolutely requires that he who inflicted the 
wrong, whether by killing, by destroying property, or by taking 
booty, should make good the wrong done. 1 

Thus God says He is not pleased with the fasting of those who 
held prisoners that had been wrongfully captured 2 ; and the king 
of Nineveh, in proclaiming a public mourning, ordered that men 
should cleanse their hands of plunder, being led by nature to recognize 
the fact that, without such restitution, repentance would be false 
and in vain. We see that this is the opinion not merely of Jews 3 
and Christians, but also of Mohammedans. 4 

IV. Who are bound to make restitution, and to what extent 

Furthermore, according to the principles which in general terms 
we have elsewhere set forth, those persons are bound to make restitu- 
tion who have brought about the war, either by the exercise of their 
power, or through their advice. Their accountability concerns all 
those things, of course, which ordinarily follow in the train of war ; 
and even unusual things, if they have ordered or advised any such 
thing, or have failed to prevent it when they might have done so. 

Thus also generals are responsible for the things which have 
been done while they were in command ; and all the soldiers that 
have participated in some common act, as the burning of a city, are 
responsible for the total damage. In the case of separate acts each 
is responsible for the loss of which he was the sole cause, or at any 
rate was one of the causes. 



1 Cor., vi. 
10. 



Jonah, ii. 
10 [iii. 8]. 



Precepts of 
the Law, 
Precepts 
Bidding, 
16. 



Sylvester, 
word 
bellum, i, 
nos. 10, 11 
and 12 ; 
Covaxru- 
vias, On 
Sext, V. 
ult. 4, pt. 
11, 2, no. 
8; Lessius, 
II. xiii, 
dub. 4. 
Add Dig. 
XLVII. ii. 
21. 9. 



V.' Whether things taken in an unjust war are to be restored by him 
who took them 

1. I should not think that we ought to admit the exception, 
which some introduce with regard to those who furnish their services 

1 Numbers, v. 6 [and 7]. Jerome, To Rusticus, says : ' The pronouncement of vengeance is not 
cancelled unless the whole is restored.' Augustine, in a letter to Macedonius, which is liv [Letters, cliii. 
20], writes : ' If the property of another, for the sake of which the sin was committed, can be returned, 
and it is not returned, repentance is not felt but pretended.' This is cited by Gratian, in the Decretum, 
II. xi. 6 [II. xiv. 6. 1]. 

2 There is a significant passage in Isaiah, lviii. 5, 6 and 7. You find it in Greek in Justin Martyr, 
Dialogue with Trypho [xv]. 

3 See the penitential canons of Moses Maimonides, ii. 2. Also Moses de Kotzi, Precepts Bidding, 16. 

4 See Leunclavius, Turkish History, V and XVII. 



Sylvester, 
loc. cit., 
no. 10. 



1569.27 



3 c 



720 



On the Law of War and Peace 



[Book III 



Vazquez, 
Contt 
siae Illus- 
tres, I. ix. 

17 ; 

lina, disp. 
vero. 






\ III 

See above, 
II. xi. 



to others, in case some blame should attach to them. Fault without 
evil intent is in fact sufficient to warrant restitution. There are 
some who seem to think that things captured in war, even if there 

not a just cause for the war, should not be restored. The reason 
they allege is that those who fight with one another, in entering 
upon war, are understood to have given these things to the captors. 
But no one is presumed to risk his property rashly ; and war of itself 
is far removed from the nature of contracts. 

However, in order to give to peoples that were at peace a certain 
rule to follow, that they might avoid being involved in war against 
their will, it was sufficient to introduce the idea of legal ownership 
(externum dominium) of which we have spoken, which may exist along 
with the moral obligation (interna obligatio) of restitution. The 
writers themselves seem to enunciate this in connexion with the law 
of the captivity of persons. Thus in Livy the Samnites say : ' We 
have restored the property of the enemy taken in the spoil, which 
seemed to be ours by the law of war ' ; * seemed ', he says, 
because that war had been unjust, as the Samnites had previously 
acknowledged. 

2. A not unlike case is that arising from a contract entered 
into without fraud, in which there is an inequality. In such a case 
by universal common law there arises a power of some sort to compel 
him who has made the contract to fulfil his agreements ; neverthe- 
less, in accordance with the duty of an upright and honourable man, 
he who has contracted for more than is right is none the less bound 
to reduce the transaction to an equality. 



Sec above, 
II. ix. 



VI. v. 



VI. Wheiher ihings taken in an unjust war are to be restored by him 
who holds them 

I. But he who has not inflicted the loss himself, or has inflicted 
loss without any fault of his own, and has in his possession a thing 
taken from another in an unlawful war, is under obligation to return 
it, because there is no naturally just reason why the other should 
go without it [511] neither his consent, his deserving of evil, nor 
recompense. In Valerius Maximus there is a story which bears on 
this point : 

After Publius Claudius had sold at auction the people of Camerina, captured under 
his leadership and auspices (he says), the Roman people, although they saw that the 
treasury had been enriched with money and their land increased by an accession of 
territory, nevertheless with the greatest care sought out and redeemed these people, 
and assigned to them a site on the Aventine to dwell upon, and restored their estates, 1 



Antony compelled the Tyrians [512] to restore all that they held belonging to the Jews. 
He ordered that the men whom they had sold should be set free, and that goods should be restored 



Chap. X] Things which are done in an Unlawful War 721 

because it seemed that the good faith of the commander in this exploit was not beyond 
reproach. 

In like manner by a decree of the Romans the Phocaeans received 
back both their freedom as a state and the lands which had been 
taken from them. Afterward the Ligurians, 1 who had been sold by 
Marcus Pompilius, recovered their libertv through the return of the 
purchase price to their buyers, and care was taken to restore their 
possessions. The Senate passed a similar decree with regard to the 
people of Abdera, adding as a reason that an unlawful war had been 
waged against them. 

2. Still, in accordance with the principles which have been 
elsewhere explained, it will be possible, if the person who holds the 
thing has incurred any expense or labour, to deduct as much as the 
thing was worth to the owner, to recover the possession of which he 
had despaired. But if the possessor of the thing has, through no 
fault of his own, consumed or alienated it, he will not be held respon- 
sible except in so far as it may be held that he has been thereby 
enriched. 



Livv, 
XXVIII 
[XXXVIII. 
xxxix. 12]. 



Livy, 
XLII 

[viii.7]. 

[Livy,] 

LXIII 

[XLIILiv. 

13]. 

[II. x. 9.] 



to their owners ; Josephus, Antiquities of ihe Jews, XIV [XIV. xii. 5]. To the Parthians Macrinus 
restored the prisoners and booty, because there had been no reason for the Romans breaking the 
peace ; Herodian, Book XIV, end [IV. xv. 6]. The Turk Mahomet ordered the liberation of those 
who had been in the city of St. Mary in Achaia ; Chalcocondylas, Book IX [ = p. 479, ed. Bekker]. 
1 See Diodorus Siculus, Excerpla Peiresciana [p. 298]. 



3C 2 



CHAPTER XI 

MODERATION WITH RESPECT TO THE RIGHT OF KILLING IN 

A LAWFUL WAR 



Lucan 
[Pharsalia, 
L 349]. 

On Duties, 

33]- 



On Duties, 

iii. 
26]. 

OnCU- 
mency, II. 
iv. 

[i=P. 94 
a.] 



From the 
Pontus, 
IX I.viii. 
19 f.]- 



[Plataic, 
viii = p. 
298 B.j 



I. In a lawful zvar certain acts are devoid of ntoral justice ; a condition 
which is explained 

1. Not even in a lawful war ought we to admit that which is 
said in the line, 

He, who refuses what is just, yields all. 

Cicero's point of view is better : ' There are certain duties which 
must be performed even toward those from whom you have received 
an injury. There is in fact a limit to vengeance and to punishment.' l 
The same writer praises the ancient days of Rome, when the issues 
of wars were either mild or in accordance with necessity. 

Seneca calls those persons cruel who ' have a reason for punish- 
ing, but observe no limit \ Aristides, in his second speech On Leuctra 9 
says : ' Men may, men may indeed be unjust in avenging them- 
selves, if they carry vengeance beyond measure. He, who in punish- 
ing goes so far as to do what is unjust, becomes a second wrongdoer.' 
Thus, in the judgement of Ovid, a certain king, 

Avenging himself to excess, 
And slaughtering the guilty, guilty himself became. 

2. In a speech of Isocrates the Plataeans ask, ' Whether it is 
just to exact so severe and unjust penalties for so trivial wrong- 



1 [5 2 53 See whathasbeensaidabove,II.xx.2 and 28,andthepassagesofAugustine,which wehave 
just cited [on III. x. 2. 2], on the benevolence of Christians even in warfare. Aristotle, Politics, V. vi, 
relates penalties harsher than was just, which ' as a consequence of partisan zeal ' were exacted at 
Thebes and Heraclea. Thucydides, III [III. lxxxii], mentions ' punishments greater than was just '. 

Tacitus, Annals, III [III. xxviii], says : * Pompey did more harm with his remedies than did the 
wTongs which he tried to correct.' The same writer m the same book [chap. xxiv] blames Augustus 
because, in his punishment of adultery, he transgressed ancestral clemency and his own laws. Juvenal 
[Satires, x. 314 ff.] writes : 

Sometimes, again, resentment more exacts 
Than any law to it concedes. 

Quintilian declares [Declamations, VI. x] : ' It is only from the extreme parricide that punishment 
is exacted beyond human measure.' The Emperor Marcus [Aurelius] Antoninus, according to Vulcacius 
in the Life of Avidius Cassius [chap. xi], said : ' I shall write to the senate to prevent any too serious 
proscription or too cruel punishment.' Ausonius said [Cupido Cruci Affixus, II. 93, 94] : 

And greater than his crime 
His punishment appeared. 
Ammianus, XXVI [XXVI. x. 6], writes : ' Vengeance was meted out to many more bitterly than 
their errors or their crimes demanded.' There is a similar passage in Agathias, Book III [IV. vi]. 

722 



Chap.xi] The Right of Killing in a Lawful War 



723 



doings ? ' The same Aristides, whom we have cited above, in his 
second oration On Peace, says : ' Do not merely consider the 
causes for which you are going to exact punishment, but also who 
they are f rom whom the punishment is to be exacted, [513] who we 
ourselves are, and what is the just limit of punishments.' Minos is 
praised in Propertius because, 

Although a victor, just to the foe he was ; * 

and also by Ovid : 

Lawgiver most upright, 
He laws imposed upon his conquered foes. 



[=P-77A.] 



[Elegies, 
III. xix. 

27 f-] 

[Metatnor- 
phoses, 
VIII. 101 

f.] 



II. Who may be killed in accordance zvith moral justice 

When it is just to kill for this must be our starting point in 
a lawful war in accordance with moral justice (iustitia interna) and 
when it is not just to do so, may be understood from the explanations 
which were given by us in the first chapter of this book. 

Now a person is killed either intentionally or unintentionally. 
No one can justly be killed intentionally, except as a just penalty or 
in case we are able in no other way to protect our life and property ; 
although the killing of a man on account of transitory things, even 
if it is not at variance with justice in a strict sense, nevertheless is 
not in harmony with the law of love. However that punishment 
may be just, it is necessary that he who is killed shall himself have 
done wrong, and in a matter punishable with the penalty of death 
on the decision of a fair judge. But we shall here say less on this 
point, because we think that what needs to be known has been suffi- 
ciently set forth in the chapter on punishments. 



Victoria, 
On the Law 
of War, 
nos. 36 
and 45. 



III. No one may rightly be killed because of his ill-fortune ; for example, 
those who take sides under compulsion 

1. Previously, in discussing suppliants for there are sup- 
pliants in war as well as in peace we distinguished ' ill-fortune ' 
(aTV)(7]iJLa) and ' wrong ' (dSiV^/xa). Gylippus, in the passage of 
Diodorus Siculus which we then quoted in part, asks in which 
class the Athenians should be placed, in that of the unfortunate or 
that of the unjust. He declares that they cannot be regarded as 
victims of ill-fortune, seeing that, of their own accord, and unpro- 
voked by any wrong, they had waged war upon the Syracusans. He 



[II. xxi. 

5.1.] 



[XIII. 

xxix.] 



1 Ovid, Tristia, I. viii [I. ix. 35]: 

Even to the wretch is justice due, and toward a foe 
'Tis praised. 



- 



On the Law of War and Peace 



[Book III 






XXVI 
XXVII. 
xvii. 13]. 

For 

Quintius 
[ii. 6]. 

[ii. 5-] 



xxi ;.xii. 
20]. 



concludes that, since of their own initiative they had undertaken the 
war, they must also in their own persons endure the evils of the war. 
An example of the victims of ill-fortune are those who are in 
the ranks of the enemy without hostile intent, as the Athenians were 
in the time of Mithridates. Of these Velleius Paterculus speaks 
thus : 

If any one blames the Athenians for this period of rebellion, when Athens was stormed 
by Sulla, he is indeed ignorant both of the truth and of antiquity. So steadfast was thc 
loyalty of the Athenians to the Romans, that at all times and in every matter the Romans 
declared that whatever was carricd out in good faith was done with Attic loyahy. But 
at that time, oppressed by the forces of Mithridates, the men of Athens were in a most 
pitiable condition. While they were in the grasp of the enemy, they were besieged 
by their friends, and they had their hearts outside the walls while their bodies, by con- 
straint of necessity, were within. 

The end of the quotation may seem to have been adapted from 
Livy ; in this author the Spaniard Indibil says that, although his body 
was with the Carthaginians, his heart was with the Romans. 

2. * Beyond doubt ', as Cicero says, ' all men whose lives are 
placed in the power of another more often think what he, under 
whose authority and sway they are, is able to do, than what he ought 
to do.' The same author, in his speech For Ligarius, declares : ' There 
is a third time, when he remained in Africa after the arrival of Varus ; 
but if that is criminal, it is a crime of necessity, not of will.' The 
principle was applied by Julian in the case of the Aquileians, as we 
learn from Ammianus. This author, after recounting the punish- 
ment of a few persons, adds : ' All the rest departed unharmed ; 
necessity, not intention, 1 had driven them into the madness of 
strife.' 



1 Shortly after he adds : ' For so the mild and kindly emperor, considering what was fair, had 
decided.' Thucydides, Book III [III. xxxix], in the speech of Cleon, says : ' I pardon those who 
deserted us under pressure from the enemy.' This is called a consideration of extreme necessity by 
Paul, in his Sentenliae, V. i [V. i. 1] ; for surely, as Synesius says, ' Necessity is something strong and 
violent.' Juvenal says of the Calagurritani [Satires, xv. 103 f.] : 

For who of men or gods forgiveness would refuse 

To men who had such dire and dreadful sufferings endured? 

On the necessity imposed by famine, see Cassiodorus, [Variae,] IX. xiii. Pertinax says of Laetus 

and others : ' They obeyed Commodus unwillingly, but, when they had the opportunity, they revealed 

what they had always wished ' [Capitolinus, Life of Pertinax, v]. Cassius Clemens in Xiphilinus's 

narrative of Severus [LXXIV. ix] declares : ' I knew neither you nor Niger ; but, being left in the 

which he had seized, I did what was necessary ; I obeyed the actual ruler, not with the intention 

r upon you, but to drive out Julian.' When Aurelian entered Antioch, where many had 

ith Zenobia, he issued an edict ' attributing what had transpired rather to the necessity imposed 

< rsons than to their real desires' [Zosimus, I. li]. 

. Vandalic War, I [I. xx], Belisarius says : ' For all the Africans were subject to the 
ncir will.' In the same writer, Golhic IJV/r, III |III. vii], Totila says to the Neapdi- 
tans that he knows that they have been unwillingly subject to the enemy. Moreover, Nkcl 

iiistory, in speakin^ of [526] Iknry, the brother of Boldwin, writes [Urbs 
' the inhaJ he city be slaughtered, as though they were 

or sheep, ai who were being put to death, and particularly such as had yielded 

to the Blachi under constraint and not by persuasion, and who had not voluntarily obeyed them.' 



Chap.Xl] The Right of Killing in a Lawful War 



725 



On the passage of Thucydides regarding the Corcyraean prisoners 
who had been sold, an ancient commentator remarks : ' He reveals 
a clemency worthy of the Greek character ; for it is cruel to kill 
prisoners after a battle, especially slaves, who do not wage war of 
their own will.' In the speech of Isocrates, already mentioned, the 
Plataeans assert : [514] ' We served them ' (the Lacedaemonians) 
' not willingly, but under compulsion.' The same writer says of 
others of the Greeks : ' These were compelled to follow their side ' 
(that of the Lacedaemonians) ' in body, but in spirit they were with 
us.' Herodotus had previously said of the Phocians : ' They sided 
with the Medes, not willingly, but by force of necessity.' 

As Arrian relates, Alexander spared the Zelites ' because they 
had been compelled to serve on the side of the barbarians '. In 
Diodorus, Nicolaus of Syracuse says in his speech on behalf of the 
prisoners : ' The allies are compelled to take the field by the power 
of those who have authority over them ; therefore, as it is fair to 
punish those who do wrong with intention, so it is right to pardon 
those who do wrong against their will.' Similarly, in Livy the Syra- 
cusans, in clearing themselves before the Romans, say that they had 
broken the peace because they were confused by fear and treachery. 
For a like reason Antigonus declared that he had been at war with 
Cleomenes, not with the Spartans. 



I [lv]. 



[Plataic, 
xii = p.299 

A.] 



IX [xvii]. 
I [xvii]. 



XIII 

[xxvii]. 



XXV 

[xxix. 3]. 



Justin, 
XXVIII 

[iv. 13.] 



IV. No one may rightly be killed on account of a fault that is inter- 
mediate between ill-fortune and deceit ; the nature of such a fault 
is explained 

1. But it must be observed that between absolute wrong and 
unmitigated ill-fortune a mean may often intervene which is com- 
posed, as it were, of both elements. In such a case the action cannot 
be called purely that of a man having knowledge and intent, nor 
purely that of a man not having knowledge or acting against his will. 

2. To this class of actions Aristotle applied the term ' fault ' 
(ajjidpTrjjjLa), which may be rendered in Latin by culpa. Thus, in the 
fifth book of the Ethics, the tenth chapter, he speaks as follows : 

Of those things which we do of our own accord, some we do deliberately, others 
without premeditation. Those are said to be done deliberately which are done after 
a certain previous mental consideration ; what is done otherwise is done without pre- 
meditation. Since, therefore, in human intercourse the infliction of injury may occur 
in three ways, that which proceeds from ignorance is called a mistake ; as when a person 
has done something not against him whom he had in mind, or has done what he did 
not have in mind, or not in the way he thought, or not with the expected result ; as if 
some one thought that he was striking not with this instrument, nor this man, nor for 
this cause, but there happened what he had not intended. An example would be if 
a man wished to prick, not to wound, or not to do it to this man, or not in this way. 



[Rhetoric, 
I. xiii.] 



726 On the Law of War and Peace [Booklll 

Now when the hurt is done contrary to expectation it will be a mishap. But if 
the injury could have been in any way expected, or foreseen, and yet is not inflicted 
with evil intent, there will still be a degree of fault ; for he is very near to a fault who 
has in himself the origin of the action, while he is unfortunate if the origin is outside 
of him. Whenever a person acts with full consciousness of what he does, yet not after 
deliberation, we must admit the presence of wrong, as in the acts which men are wont 
to commit under the influence of anger and similar natural or unavoidable emotions. 
For those who inflict injury when stirred by anger, and admit their fault, are not cleared 
from wrong, but yet they are not said to be unjust or wicked. But if any one commits 
the same act deliberately he will rightly be styled wicked and unjust. 

3. Consequently, what is done under the influence of anger is correctly held not to 
have been done with premeditation. For it is not he who does something from anger, 
but he who has caused the anger, that started the trouble. Hence it often happens that 
in trials of this sort the inquiry is directed not to the facts but to other rights of the 
parties ; for anger arises from that which any one thinks has been wrongfully done to 
him. Therefore the question under discussion is not whether this or that has been done, 
as in dealing with contracts for in the case of a contract, unless there has been forget- 
fulness, the one of the two parties who has not fulfilled his obligation is clearly in the 
wrong but the purpose is to discover whether what has been done has been done 
justly. 

Now a person who first plotted treachery did nothing in ignorance ; wherefore it 
is not strange if the one should think that he has been wronged, and the other should 
not think so. Nevertheless, it is possible that he who in turn inflicts an injury on such 
a ground should be considered unjust, particularly if he exceeds the rule of equality 
and proportion in his reprisal Therefore he is just who acts justly from deliberate 
purpose, although any one may act justly [515] if he merely acts voluntarily, without 
deliberation. 

4. But of the things which are not done on the spur of the moment,some are deserving 
of pardon, and others not. Deserving of pardon are those which are not only done by 
ignorant persons, but also done in consequence of their ignorance. 1 If something is 
done by ignorant persons, yet not because of their ignorance, but from such a diseased 
mental state as goes beyond the common limits of human nature, it is not deserving of 
your pardon. 

This passage, which is truly notable and has been much used, 

I have rendered into Latin in its entirety, because in most cases it 

is not correctly translated and therefore not adequately understood. 

OnthtNi- 5, In interpreting this passage Michael of Ephesus gives as an 

ftkirt example of that which could not have been expected the case of 

vn.iL ne who injured his father when opening a door, and of one who 

wounded somebody when training himself in throwing the javelin 

in a deserted spot. As an example of what could have been foreseen, 

but happens without malice, is the case of him who has thrown his 

javelin on a public road. The same writer gives as an example of 

what is done under necessity the case of him who is compelled to do 

something by hunger or thirst ; of what is done from natural emotions 

are cases of love, grief, fear. He says that something is done through 

1 Dionysius of Halicarnassus, I [I. lviii], says : ' Everything that is not done voluntarily is worthy 
of pardon.' And Procopius, Gothic War, III [III. ix] : ' If any persons have caused trouble to others, 
either because they have been under the domination of ignorance, or by reason of some forgetfulness, 
it is right that those very persons who have suffered the mjuries should grant them forgiveness.' 



Chap.xi] The Right of Killing in a Lawful War 



727 



ignorance when one is ignorant of a fact, as if some one should not 
know that a woman is married. Something is done by one who is 
ignorant, but not through ignorance, when one is ignorant of the 
law. However, to be ignorant of the law is at times pardonable, at 
times unpardonable ; and this agrees very well with the sayings of 
the jurists. 

A passage not unlike this Aristotle himself has in his book on the 
art of oratory : ' Justice demands that we should not treat alike 
wrongs and faults, nor faults and misfortunes. Now misfortunes are 
things which could not have been foreseen, and are not committed 
with evil intent ; faults, things which could have been foreseen, yet 
are not done with evil intent ; wrongs, things done purposely and 
with evil intent.' The ancients also noted these three things, and in 
the verse of Homer on Achilles, in the last book of the Iliad, we 
read : 

Not ignorant is his mind, nor evil, nor imprudent. 

6. Marcianus makes a similar division : 

Men do wrong either purposely, or on impulse, or by accident. Robbers, who form 
a band, do wrong purposely ; those who resort to blows or to weapons when intoxicated 
do wrong on impulse ; and when in hunting a missile cast at a wild beast kills a man 
the wrong is done by accident. 

The two former classes of wrongs, those done purposely and 
those done on impulse, are distinguished by Cicero in the following 
manner : ' But in every act of injustice it is of the greatest moment 
whether the wrong is done from some mental excitement, which is 
usually brief and temporary, or designedly and upon reflection. 1 
For what happens from some sudden impulse is less serious than what 
is inflicted after meditation and preparation.' Philo, 2 moreover, in 
his interpretation of the Sfecial Lazvs, speaks thus : ' The crime is 
lessened by half where it has not been preceded by long deliberation.' 

7. In this class are, in particular, those things which necessity, 
if it does not justify them, at least excuses. 3 In fact, as Demosthenes 



Digest, 
XXII. vi. 
Code, I. 
viii. 



[XXIV. 

157 and 

186.] 



Digest, 
XLVIII. 
xix. 11 

[2]. 



1 Seneca, On Anger, I. xvi [I. xix], says : ' He frequently discharges [the culprits] if he perceives 
that their wickedness does not dwell in the depths, as they say, of the heart, but on the surface.' And 
then : ' Sometimes he punishes great crimes more leniently than lesser ones, if the great crimes have 
been committed from error and not from cruelty, while in the lesser crimes there is ingrained cunning, 
both secret and open.' 

The same author says also: 'A crime will not affect people in the same way in the case of two 
persons if the one has done wrong through carelessness, and the other has laid plans for his guilty deed.' 

2 On Special Laws, II [III. xvii]. 

3 Add what is above in II. xx. 29, and in this chapter, III. xi. 3, above. In Thucydides, Book III 
[III. xxxii], the Samians said to Alcidas the Lacedaemonian, when he put to death the Chian prisoners, 
that ' he did not speak the truth in saying that he had come to set Greece free, seeing that he put to 
death men who did not actively oppose him, and were not hostile in spirit, who were in fact allies of the 
Athenians, but had been driven to that course by necessity '. 

Chrysostom, On Providence, V, says : ' Private enemies know how to pardon privaLe enemies, 
and public enemies public enemies, whenever these commit some wrong, however serious, against them 



728 



On the Law of War and Peace 



[Book III 



[xxiii.148 
= pp. 668- 
9] 



[xlv. 67 
= p. I : 
IV. xcviii.] 



VII xx. 

VIII i. 

I 



[Porphvrv, 
OnAb- 
staining, 
III. xviii.] 

[=P- 145 
c.] 



? of 
the So- 
phists, II. 
xv. 2.] 

Eth., 
VII. xi.] 

JtlS, 

vii=p. 93 .] 



says, Against Aristocrates : ' Impulses arising from necessity prevent 
deliberation regarding that which ought or ought not to be done. 
YVherefore these actions must not be judged with too much strict- 
ness by those who would judge fairly.' This view is expressed at even 
greater length by the same orator in his speech on false testimony, 
Against Stefhanus. Thucydides, Book IV, says : 

Wc may wcll believe that with [516] deity also there is pardon ready 1 for those 
who do wrong under the constraint of war or some similar necessity. For the altars 
of the gods are open as a refuge for unintentional faults ; and the term injustice is applied 
to those who are wicked of their own volition, not to those who are driven by extremity 
to desperate deeds. 

In Livy the people of Caere say to the Romans : ' They should 
not term counsel what should be called compulsion and necessity.' 
Justin writes : * The act of the Phocians, although it was condemned 
by everybody on the ground of sacrilege, nevertheless aroused greater 
animosity toward the Thebans, who had reduced them to this 
extremity, than toward themselves.' Similarly, in the opinion of 
Isocrates, the person who, to save his life, commits an act of plunder, 
' has necessity as a cloak for his wrongdoing \ Aristides, in his 
second speech On Leuctra, says : J Hard times give some excuse to 
those who revolt.' 

Regarding the Messenians who had been accused of not having 
received the exiles from Athens, Philostratus writes as follows : 
' Their defence rests on a request for pardon ; their excuse is 
Alexander, and the fear of him which was felt by every part of 
Greece.' Such is the man whom Aristotle describes as ' half bad, 
but not unjust ; for he plotted no evil \ 2 

In his praises of the Emperor Valens, Themistius applies these 
distinctions to the requirement of our subject as follows : 

You have distinguished between wrong, error, and misfortune. 3 Although you are 
not learning the words of Plato, nor perusing Aristotle, nevertheless in fact you are 
following their precepts. 4 For you did not hold that equal punishment was deserved 



unwillingly and contrary to their own desires.' In Agathias, III [IV. xx], the Misimiani declared that 
' they were not altogether unworthy to be spared and pardoned, when, after having suffered a multitude 
of wrongs, they had consequently been impelled to take revenge with true barbaric vehemence '. 

1 iJeuteronomy, xxii. 26 ; Moses Maimonides, Guide of the Perplexed, III. xli. 

* ' On this charge Cleon attacks the cause of the Mityleneans, in Tluicydides, III [III. xl] : ' They 
did not injure us unwillingly, but they plotted against us purposely. That alone is deserving of pardon 
which one does against his will.' Philo, in his book De Constitutione Principis [xiiij, says : ' If he must 
ed to take vengeance, he knows how to distinguish between those who lead a life of intrigue 
and those who are of a far different spirit. For to proceed to slaughter all, even those who have 
committed the least sins [or ncne at allj, is characteristic of a fierce and savage mind.' 

1 C5 2 7] Seneca, Natural Queslions, II. xliv, where he discusses thunderbolts, says : ' They 

! to wam those, whose duty it is to thunder against the sins of men, that all things are not to be 

struckin thesameway ; t tobe demolished, some shattered and leparated, ainl ftome warned.' 

h a one was Trajan, one of the notable Roman emperofl : ' Hc U DOt niaster of that exact 

learning which is expressecl in words, but its content he both knew and practised ' ; Xiphilinus [LXVIII. 

:an [I. ii. 4] writes of Marcus Aurelius : ' He was the only one of the emperors to reveal 



Chap. XI] The Right of Killing in a Lawful War 



729 



by those who had advocated war from the first, those who were later caught in the rush 
to arms, and those who submitted to him who seemed already to be master of the situa- 
tion ; but the first you condemned, the second you reproved, and the last you pitied. 

8. The same author, in another connexion, expresses the desire 
that an emperor in his youth should learn, ' What is the difference 
between misfortune, error, and wrong ; and how a king should pity 
the first, correct the second, and visit with vengeance the last alone.' 
Thus, in Josephus, Titus punishes the single leader in a criminal 
act * in reality ', and his following in speech ', with mere verbal 
castigation. 

Mere misfortunes neither deserve punishment nor create a 
liability to restoration of damage. Unjust actions do both. Fault, 
lying between the two, although it renders the responsible party 
liable for restitution, yet often does not deserve punishment, especially 
capital punishment. To this the lines of Valerius Flaccus are 
applicable : 

If fortune cruel, kin to fault, o'ertakes 

Those ill-starred ones whose hands are stained with blood 

Against their will, their conscience vexes them 

In divers ways, and in their idle hours 

Their deeds torment them. 



[ix=p. 
123.] 



Jewish 
War V 
[iii. 5J. 



[III. 39i ff- 



V. Those who are resfonsible for a war are to be distinguished from 
those who follow them 

The counsel of Themistius, who warns us that we must dis- 
tinguish between those who were responsible for a war x and those 
who followed the leadership of others, is supported by numerous 
historical examples. Herodotus relates that the Greeks exacted 
punishment from those who instigated the Thebans to desert to the 
Medes. So too, as Livy relates, the leaders of the revolt of Ardea 
were beheaded. In the same author, Valerius Levinus, ' after the 
capture of Agrigentum, scourged and executed the leaders, [517] 
but sold the rest of the people and the booty '. In another passage 
Livy says : ' The surrender of Atella and Calasia was accepted ; 
and there also those who had been in control were punished.' In 
still another passage : f Since those responsible for the revolt have 
received the punishment they deserved from the immortal gods and 
from you, conscript Fathers, what do you wish should be done with 
the innocent populace ? ' 'At length they were pardoned, and were 



IX 

[lxxxviii]. 

IV [x. 6]. 
XXVI [xl. 
13]. 



[XXVI. 

xvi. 5.] 

[VIII. : 

11.] 



his wisdom, not by words or the knowledge of doctrines, but by sound morality and a life of moderation.' 
Of Macrinus, Xiphilinus [LXXVIII. xi. 2] writes : ' His conscientiousness in the execution of the laws 
surpassed the accuracy of his knowledge of them.' Grant, Lord, such princes to our time ! 
1 See Gail, De Pace Publica, II [II. ix], no. 18. 



730 



On the Law of War and Peace 



[Book III 



XXVIII 

[Sup- 
pliants, 
878 ff.] 



III 

[xxxvi]. 



[xxi. x ; 



granted citizenship, with the purpose ', no doubt, as he elsewhere 
. ' that the punishment might remain where the guilt arose.' 
In Euripides, Eteocles the Argive is praised because 

When he was judge, the culprit bore the blame, 
And not his native city, which ofttimes 
Bears the reproach for misdeeds of the ruler. 

The Athenians, according to Thucydides, repented of their decree 
against the inhabitants of Mitylene, ' that they should put to death 
the whole city rather than merely the instigators of the revolt '. 
Diodorus relates that Demetrius, after taking Thebes, executed only 
the ten persons responsible for its defection. 



ria, 
On the Law 

no. 59. 

II xvii. 
25]. 

On Cle- 
mency, II. 
vii. 



VII >x. 2]. 

[Appian, 
Syrian 
Wars, iv. 

[= P- 135 

BC.] 



[I.xi.35.] 



[Plutarch, 
Demetrxus, 
v= p. 891 

vi.4]. 



VI. With regard to those who are responsible for a war we must dis- 
tinguish between causes which may be and those which may not be 
afproved 

1. Further, in considering those who are responsible for a war, 
we must distinguish between the causes of their action ; for there 
are some causes which are not indeed just, but still are such that 
they may deceive persons who are by no means wicked. The author 
of the Ad Herennium suggests this as a perfectly equitable reason for 
pardoning : when any one has done wrong not from hatred or cruelty, 
but moved by a sense of duty and righteous zeal. Seneca's wise man 
' will dismiss his enemies safe and sound, at times even^with praise, 
if they have taken the field on honourable grounds, on behalf of 
loyalty, a treaty obligation, or liberty '. 

In Livy the people of Caere seek pardon for their error * because 
they gave aid to their kinsmen. The Phocians, Chalcidians, and 
others, who had supported Antiochus on the ground of a treaty, 
received pardon from the Romans. Aristides, in his second speech 
On Leuctra, says that the Thebans, who had followed the leadership 
of the Lacedaemonians against the Athenians, ' had shared in an 
action unjust indeed, but one which they could cloak with some 
plea of justice, that of loyalty to the heads of their league '. 

In his first book On Duties Cicero says that we must spare those 
who were not cruel, not inhuman, in war ; then, that wars, in which 
the prize is glory of empire, should be waged with less bitterness. 
In this sense King Ptolemy informed Demetrius that ' They were 
fighting not for existence, but for empire and glory '. In Herodian 2 

es one should pardon a ruler who has been conquered, if he did not know what was 
just.' Copied from Isocrates by Ammianus, Book XXX [XXX. viii. 6]. 

* The Greek words are these : Kal Hiypw utv -noktuovvrts oi>x ovtojs tvkoyovs tlxoutv aWios 
tX^pas, ws uvayKaias. ov yap irap ^ulv vpnvvupxovaav dpxi,v v^apva^wv ptpiffrjro, tv uto<p 5< 
ipptuuivrjv Kai uu<pi\p*.oyov ovoav, iKartpos r)u(uv f looriuov (pi\oripias tii avruv uvdtikKtv. 
Excellently said. 



Chap. XI] The Right of Killing in a Lawful War 731 

Severus says : ' When we waged war against Niger, we had not in 
fact such specious grounds for enmity ; for each of us with equal 
ambition sought to secure for himself the principate, which lay 
open to all and was still an object of dispute.' 

2. Often there occurs what we find stated in Cicero regarding 
the war between Caesar and Pompey : ' There was some uncer- 
tainty ; there was a contest between the most eminent generals ; 
many were in doubt as to what it would be best to do.' The same 
author says elsewhere : ' Even if we are guilty of some fault arising 
from human error, we are certainly guiltless of crime.' Evidently, 
as in Thucydides, those acts are said to deserve pardon which are 
done, * not from wickedness, but rather from an error of judgement '. 

Cicero says also of Deiotarus : ' He did not act from hatred 
of you, but he went astray through a common error.' Sallust writes 
in his Histories : ' Of the rest of the crowd, after the fashion of 
a mob rather than prudently, the one followed the other as wiser 
than himself.' What Brutus wrote with regard to civil wars might, 
I should think, well be referred to most other wars : ' More zeal 
should be shown in preventing them than in giving vent to wrath 
against the vanquished.' * 



[v. 13-1 



VII. Punishment may often be remitted justly even to enemies who 
have deserved death 

1. Even where justice does not demand the remission of punish- 
ment, this is nevertheless often in conformity with goodness, [518] 
with moderation, 2 with highmindedness. ' The greatness of the 
Roman people has been augmented by pardoning,' says Sallust. 
From Tacitus we have : ' We ought to make use of as great kindness 
towards suppliants as tenacity against an enemy.' Seneca says : ' It 
is characteristic of wild beasts, though not of the higher types, to 
bite and worry those that have been struck down. Elephants and 
lions pass by what they have thrown over.' These words of Virgil 
are often timely, 

Not here undone the Trojan's victory, 
Nor will one life decide so great an issue. 

2. On this point there is a notable passage in the fourth book 
of the Ad Herennium : 

Our ancestors did well in establishing this practice, not to put to death any king 
whom they had made prisoner in war. Why so ? Because it was nnjust to take advantage 



Annals, 
XII [xx]. 

On Cle- 
mency, 
I. v. 



[IV 
xvi. 23.] 



1 Bembo, IX. 

1 King Theodoric in Cassiodorus, [Variae,] II. xli : ' Those wars have turned out successfully 
for me which have been terminated without resort to extreme measures ; for he conquers effectively 
who knows how to exercise moderation in all things.' 



732 



On the Law of War and Peace 



[Book III 



[Eume- 
nius, 

vi. io. 1 



See 

Plutarch, 
Aemilius. 
Paulus 
xxxvii 
= p.274F]. 

War, VII. 



of the opportunity which fortune had given us for the punishment of those vvhom that 
same fortune had but shortly before placed in a most exalted station. 

What of the fact that he led an army against us ? I cease to recall it. Why so ? 
Because a brave man holds as enemies those who strive for victory, but considers as men 
those who have been conquered, in order that courage may lessen war, and humaneness 
enrich peace. But if he had conquered, he would not have done the same, would he ? 
:hen do you spare him ? Because I have been accustomed to despise such folly, 
not to imitate it. 

If you take this with reference to the Romans (a point that is 
uncertain, since this writer uses foreign and imaginary examples), it 
is in direct opposition to what we find in the panegyric addressed to 
Constantine, the son of Constantius : 

He may be more prudeht who binds his adversaries to him by pardon, but he is 
stronger who tramples upon those that are angry. You, Emperor, have received that 
ancient trust of the Roman Empire, which was wont to exact the vengeance of death 
from the captured leaders of the enemy. In those days captive kings, after having adorned 
the chariots of those celebrating triumphs, from the city gates to the forum, as soon 
as the victorious general began to turn his chariot toward the Capitol were dragged off 
to prison and put to death. Perseus alone, at the personal intercession of Paulus, who 
had received his surrender, escaped the severity of this law. The rest, chained in dark 
dungeons, furnished an object lesson to other kings, 1 that they would find it preferable 
to cultivate the friendship of the Romans rather than to rouse their sense of justice. 

But this writer also speaks too sweepingly. Josephus, in his 
account of the death of Simon Barjoras, makes the same point regard- 
ing the severity of the Romans, but he is speaking of leaders like 
Pontius the Samnite, not of those who had the title of king. The 
substance of his narrative in translation is as follows : 

The end of the triumph came after the arrival at the temple of Jupiter on the Capi- 
toline hill ; for the ancient custom of the state required that victorious generals should 
wait there until the death of the leader of the enemy should be reported to them. This 
leader was Simon, son of Joras, who was led among the captives in the triumphal pro- 
cession ; then, with a noose about his neck he was dragged into the forum, being mean- 
while scourged by his guards. It is the Roman custom to exact punishment in this place 
from those who have been condemned of capital offences. When it was reported that 
Simon was dead, there followed the announcement of favourable omens and then 
sacrifices. 



1 I should not like to have this custom resurrected. Nevertheless even Joshua put captured 

kings to death ; Josephus, Antiquities of the Jews, V. i [V. i. 19]. Dio Cassius [XLIX. xxii. 6] says of 

is : ' He crucified Antigonus and scourged him with rods ' ; but he takes pains to add : ' a 

thing which no other king had suffered at the hands of the victorious Romans.' The same story is 

in Josephus, Book XV \Antiquities of ihe Jews, XV. i. 2]. 

Eutropius, Book X [X. iii], says of Maximian Herculius [rather of Constantine 1] : ' When the 

Franks and Alemanni had been slaughtered, and their kings taken prisoner, he cast the kings to the 

wild beasts. ,t spectacle which he had prepared as a distinction of his ofhce.' See 

X VII. ii. 9], on the king of the Alemanni who was hung from a gibbet. Theodoric, 

beheaded Athiulf, king of the Suevi, in Spain, as is recorded by Jordanes, 

Hislory of Goths [xliv]. 

Verily, these instances furnish proof to kings that they should practise moderation, and that tht-v 
should reflect that they too are subject to human vicissitmlo, ii God so wills ; and that, accordiiiL; \<> 
the saying of Solon, which Croesus remembered when in like peril, one cannot pass judgement upon 
a man s good fortune until he is dead. 



Chap.XI] The Right of Killing in a Lawful War 



733 



in 



the 



passage on 



Cicero gives an almost identical account 
punishments in his speech Against Verres. 

3. Of commanders who met such a fate we have numerous 
examples ; of kings, a few, as Aristonicus [Aristobulus], 1 Jugurtha, 
Artabasdus. But yet, besides Perseus, Syphax, 2 Gentius, Juba, and, in 
the time of the Caesars, Caractacus, and others, escaped such punish- 
ment, so that it appears that the Romans took into account both the 
causes of war and its manner of conduct, although Cicero and others 
admit that when victorious they were unjustly severe. So in Diodorus 
Siculus, Marcus Aemilius Paulus, in the case of Perseus, gives good 
advice to the Roman senators when he says : ' If they had no fear 
of men, yet they should fear the divine vengeance which hangs over 
those that make too insolent a use of victory.' [519] Plutarch 
records 3 that in the wars among the Greeks even the enemies of the 
Lacedaemonians did no violence to their kings, through respect for 
the royal dignity. 

4. An enemy therefore who wishes to observe, not what the 
laws of men permit, but what his duty requires, what is right from 
the point of view of religion and morals, will spare the blood of his 
foes ; and he will condemn no one to death, unless to save himself 
from death or some like evil, or because of personal crimes which 
have merited capital punishment. Furthermore, from humanitarian 
instincts, or on other worthy grounds, he will either completely 
pardon, or free from the penalty of death, those who have deserved 
such punishment. 

The same Diodorus Siculus, whom I have mentioned, has 
an excellent statement : ' The storming of cities, the winning of 
battles, and all other successes in war, are more often due to fortune 
than to valour. But for those in the highest authority to show mercy 
to the vanquished is the work of wisdom alone.' In Curtius we 
read : ' Although Alexander could justly have been angry with those 
who were responsible for the war, still he gave pardon to all.' 



[V. xxvi. 
66.] 



[OnDuties, 
I. xi; III. 

x.] 

Selections 
[xxxi. 2]. 



XXVII 
[XVII. 

xxxviii] . 



[IX. i. 



VIII. One must take care, so far as is possible, to prevent the death of 
innocent persons, even by accident 

Again, with regard to the destruction of those who are killed by 
accident and without intent, we must hold fast to the principle 
which we mentioned above. It is the bidding of mercy, if not of 
justice, that, except for reasons that are weighty and will affect the 



1 See Appian, Mithridatic Wars, at the end [xvii. 117]. 

2 Historians differ in regard to him. Many relate that he died in the neighbourhood of Rome 
before the triumph ; Polybius [XVI. xxiii], that he was led in the triumph ; Appian [Punic Wars, 
v. 28], that he died of disease, while his fate was under consideration. 

3 [528] Agis[xxi=p. 804 e]. 



734 



On the Law of War and Peace 



[Book III 



safety of many, no action should be attempted whereby innocent 
[V. .] persons may be threatened with destruction. Polybius is of the same 
opinion as ourselves, and in his fifth book speaks thus : ' It becomes 
good men not to wage a war of annihilation even with the wicked, 
but to proceed only so far that crimes may be remedied and corrected ; 
and not to involve the innocent in the same punishment as the guilty, 
but even to spare those who are guilty for the sake of the innocent.' 



[On 

Anger.) 
III. xxiv. 

Deut., xx. 
4- 



Numbers, 
xxxi. 18. 

Jonah, 



ii]. 



IX. Children should always be sfared ; zvomen, unless they have been 
guilty of an extremely serious offence ; and old men 

I. With these principles recognized, the defining of provisions 
to cover the more special cases will not be difficult. ' Let the child 
be excused by his age, the woman by her sex,' x says Seneca in the 
treatise in which he vents his anger upon anger. In the wars of the 
Jews God himself desired that women and children be spared even 
after peace had been offered and rejected apart from a few peoples 
that were excepted by a special law, and against whom the war was 
not a war of men, but of God, and was so called. When He desired 
that the women of the Midianites should be put to death because of 
their particular crime, he excepted the maidens who were virgin. 
Indeed when He had sternly threatened the Ninevites with destruc- 

1 Pliny, Natural Hislory, VIII. xvi : ' When the lion is enraged, he attacks men before women, 
and children only when very hungry.' On these lines of Horace, Odes, IV. vi [IV. vi. 18 ff.], 
describing Achilles : 

Children as yet untaught to speak would he consume 
In the Achaeans' fires, even those that lay 
In their mother's womb, 

the Scholiast comments thus : ' He bitterly inveighs against the cruelty of Achilles, who, if Apollo 
had permitted him to live, was so cruel that he would have spared neither infants nor babes still 
unborn.' 

Philo, De Constitutione Principis [xiii], says : ' But let maidens and women go free,' and gives as 
the reason : ' It is cruel to make women the accessories of men, who devise wars.' The same author, 
On Special Laws, II [III. xx], writes: 'For against men of ripe age there may be found a thousand 
reasonable pretexts for differences and quarrels. But against children, who have just come into the 
light and life of men, not even calumny has anything to say, for they are clearly innocent.' 

Josephus, Antiquities of the Jews, Book IX [IX. xi.], says of Manahem : ' By not even sparing 
infants he reached the extreme of cruelty, or rather ferocity. For he committed against his fellow 
countrymen acts which would not deserve pardon if they had been done to foreigners conquered in 
war.' Josephus also relates [Antiquities oflhe Jews, XII. viii. 3 and 5] that Judas Maccabeus, upon taking 
Bosra and Ephron, slew ' all males and those capable of fighting'. And elsewhere [Antiquilies of the 
Jews, XIII. xiv. 2] he calls the penalty which Alexander, surnamed the Thracian, exacted from the 
women and children of the Jews, ' an inhuman vengeance'. Agathias, III [IV. xix], says: 'Since 
indeed it was impious thus to give vent to anger and to rage against newborn infants ignorant of 
their fathers' crimes, these deeds of theirs did not go unpunished.' 

'he writer who continued his history to the times of King Henry, in speaking of the 
Scythians, who had taken Athira, says [Urhs Capta, xiv] : ' Not even infants still at the breast 
escaped destruction, but even these were so to speak harvested in their early growth, or withered as 
a flower, through the deeds of men untouched by pity, and who knew not that he who stretches his 
anger beyond the conquest and subjugation of his enemies sins against nature and violates the moral 
law of men.* 

Add what Bede has in Book II, chap. xx, on the ferocity of Caraevolla ; and the good law of the 
Swiss in Simler [Book II, p. 302, ed. Elzevir] ; and the pious ordinances of Queen Elizabeth, in Camden 
on the year 1596. 



Chap. XI] The Right of Killing in a Lawful War 



735 



tion for their very heinous crimes He suffered Himself to be diverted 
by compassion for the many thousands of the age which would be 
ignorant of the distinctions of right and wrong. 

In Seneca there is a point of view which resembles this : ' Does 
any one become angry with children whose age is not yet able to 
comprehend distinctions ? ' Also in Lucan : 

For what crime could little ones have deserved death ? 

If God has so done and so ordained He who is able to kill justly 
any persons of whatever age or sex without cause, seeing that He is 
the Giver and Lord of life what right have men, to whom He has 
assigned no right over men, to do anything not necessary for the 
preservation of human safety and human society ? 

2. In the first place, with regard to children we have the 
judgement of those peoples and ages over which moral right has 
exerted the greatest influence. [520] ' We have arms ', says Camillus 
in Livy, ' not against that age which is spared even when cities are 
taken, but against men in arms.' He adds that this has a place among 
the laws of war, that is the natural laws. 

In dealing with the same incident Plutarch says : ' Among good 
men even war has certain laws.' Note here the phrase * among 
good men ', that you may distinguish this law from the law which 
is based on custom and impunity. Thus Florus says that a certain 
course of action was inevitable, if honour was not to be violated. 
In another passage of Livy we read : ' An age from which even 
enraged enemies would withhold their hands ' ; in still another, 
* Their cruel rage led them to slay even the infants.' 

3. Again, that which is always the rule in respect to children 
who have not attained to the use of reason is in most cases valid 
with regard to women. This holds good, that is, unless women have 
committed a crime which ought to be punished in a special manner, 
or unless they take the place of men. For they are, as Statius says, 
' a sex untrained and inexperienced in war '. When Nero in the 
tragedy calls Octavia a foe, the prefect replies : 

Does a woman receive this name ? 1 

In Curtius Alexander says : ' I am not accustomed to wage war 
with prisoners and women ; he whom I am to hate must be in 
arms.' Gryphus, in Justin, declares that * None of his ancestors, in 
all their numerous civil and foreign wars, had after a victory ever 
displayed cruelty to women, whose very sex exempts them from the 



On Anger, 
II. ix [II. 
x]. 
[II. 108.] 



Victoria, 
On the Law 
of War, 
no. 36. 

[V. xxvii. 

7-] 



Camillus 
[x=p.i34 

B]. 

I [Xii]. 



XXIV 

[xxvi. 11]. 

[XXVIII. 
xx. 6.] 



[Silvae, 
I. vi. 53-1 

[Seneca,] 

Octavia 

[864]. 



V [IV. 
xi. 17]. 

XXXVIII 
[XXXIX. 

ii. 7]. 



1 And so Tucca and Varus thought that we should delete from the second book of the Aeneid 
the verses [567-88] in which Aeneas deliberates whether he shall kill Helen. 

1569.27 3 d 



73& 



On the Law of War and Peace 



[Book III 



[Annals, 
I. lix.] 



IX. i 

[IX. ii. 4]. 

XIII 

XIV 
[XIII. 

[Panegyric 
of Theo- 
dosius, 
xxix.] 
[Thebaid, 
v. 258 f.] 



dangers of war and the savageiy of thevictors.' In Tacitus another 
says that ' He is not waging war against women, but openly against 
armed men.' 

4. Valerius Maximus calls the cruelty of Munatius Flaccus 
against infants and women ferocious, and intolerable even to hear 
about. In Diodorus it is related that the Carthaginians at Selinus 
slew old men, women, and children, * uninfluenced by humane 
feelings ' ; elsewhere he calls this conduct ' cruelty \ Latinus 
Pacatus refers to women as * the sex which is spared by wars '. Papinius 
[Statius] has a similar statement about old men : 



Old men, a throng 
Inviolate in war. 



Victoria, 
Onthe 
Law of 
War, 
no. 36. 
XXVIII 
[xxiii. 1]. 
Antiquities 
ofthe Jews, 
XII. iii 
W. 

Livy, V 
[xxi. 13]. 



Greek 
Questions 
[xxi = p. 
296 B-D]. 



VIII [iii. 
331. 



X. Those also should be spared whose occupations are solely religious 
or concerned with letters 

1. The same principle is in general to be applied to men whose 
manner of life is opposed to war. ' By the law of war armed men 
and those who ofler resistance are killed,' as Livy says ; that is, by 
that law which is in harmony with nature. Thus Josephus says that 
it is right that in war those who have taken up arms should pay the 
penalty, but that the guiltless should not be injured. When Veii 
was stormed, Camillus gave orders that the unarmed should be spared. 

In this class must be placed first, those who perform religious 
duties. From ancient times among all nations it has been customary 
that such men should abstain from the use of arms ; and so in turn 
men refrained from violence toward them. Hence the Philistines, 
the enemies of the Jews, did not harm the school of the prophets l 
which was at Gaba, as one may see in J Samuel, x. 5 and 10. And 
so David in company with Samuel fled to another place where there 
was a similar school, that was removed, as it were, from all harm at 
the hands of armed forces (j Samuel, xix. 18). The Cretans, Plutarch 
tells us, when engaged in internal strifes, refrained from doing any 
harm to priests, 2 and to those in charge of cremating the dead, whom 
they called ' cremators '. This explains the force of the Greek 
proverb, ' Not even a fire-bearer was left.' Strabo notes 3 that in 

1 C5 2 9] Hyrcanus, while besieging Jerusalem, sent victims to the Temple, as the Jews relate. 
The Goths are likewise praised by Procopius, Gothic War, II [II. iv], because they spared the priests 
of Peter and Paul outside the walls of Rome. See the supplement of Charles the Great to the Bavarian 
Law [no. 2], and the Lombard Law, I. xi. 14. 

1 Servius, On the Aeneid, VII [VII. 442], says: 'For he was excluded from war, if not by his age, 
at least by the sanctity of his priesthood.' 

Also Polybius, Book IV [IV. lxxiii], and Diodorus Siculus in the Excerpta Peiresciana [p. 225]. 
In like manner also those who went to compete at the Olympic, Pythian, Nemean, and Isthmian 
Games in time of war enjoyed ' safe conduct and security '. This we learn from Thucydides, V [V. 
xlix] and VIII [VIII. x] ; and Plutarch, Aratus xxviii=p. 1040 b]. 



Chap. XI] The Right of Killing in a Lawful War 



737 



olden times, when the whole of Greece was ablaze with war, the 
Eleans, as sacred to Jupiter, and those enjoying their hospitality, 
lived in deep peace. 

2. In the same class with the priests are deservedly ranked those 
who have chosen a similar manner of life, as monks and novices, that 
is, penitents ; these the canons, in accordance with natural justice, 
order men to spare just the same as priests. [521] 

To priests and penitents you may properly add those who direct 
their energies to literary pursuits, which are honourable and useful 
to the human race. 



Decretals 
I. xxxiv. 
2. 



XI. Farmers should be spared 

In the second place farmers, whom the canons also include, 
should be spared. Diodorus Siculus relates with praise of the 
inhabitants of India that ' in wars indeed enemies kill one another, 
but they leave the tillers of the soil unharmed, for the reason that 
these render a common service.' Of the ancient Corinthians and 
Megarians Plutarch says : ' No one harmed the farmers in any way.' 
Cyrus ordered that notice be given to the king of the Assyrians ' that 
he was ready to release those who tilled the soil, and not to harm 
them \ Of Belisarius Suidas says : " He spared the tillers of the soil 
to such a degree, and exercised so great care for them, that when 
he was in command none of them at any time suffered injury.' 

XII. Merchants and like persons should be spared 

The canon adds merchants ; and this provision is to be taken as 
applicable not only to those who make a temporary sojourn in hostile 
territory, but also to permanent subjects ; for their life also is foreign 
to arms. 

Under this head are included at the same time artisans and other 
workmen, whose pursuits love peace, not war. 

XIII. Prisoners of war also should be spared 

1. To come to those who have borne arms, we have already 
mentioned the remark of Pyrrhus in Seneca, who says that a sense 
of shame, that is, respect for what is right, forbids us to deprive 
a prisoner of his life. We have adduced the similar view of Alexander, 
which included prisoners with women. We may present also this 
statement of Augustine : ' Let necessity, not inclination, cut ofr x 

1 Gratian suggested deprimat (let it crush). Plutarch says in his Marcellus [Comparison of Pelopidas 
and Marcellus, i = p. 316 d] : ' Epaminondas and Pelopidas never put any one to death after a victory, 
nor reduced states to slavery ; and it is believed that, if these men had been present, the Thebans would 
not have acted as they did to the people of Orchomenos.' Marcellus followed the same practice at the 

3 D 2 



Library, 
II [xxxvi]. 



[Greek 
Questions, 
xvii = p. 
295 c.] 
Xenophon, 
Training 
of Cyrus, 
V [iv. 24]. 
[On the 
word B(\i- 
oapios.] 



[III. x. 1.] 



[III. xi. 
9- 3-] 
Letter i, 
To Boni- 
face 
[Letters, 
clxxxix. 
6]. 



738 



On the Law of War and Peace 



[Book III 



[Agesilaus 
i. 21.] 

XIII 

XVII 
[xiii]. 

[xci. 6-7.] 



V [ix]. 

Historus, 

IV 
[xxxix]. 

On Peace, 

ii [ = p. 
8oc]. 

2 Kings, 
vi [22]. 

[line 965.] 



[Iineiou.] 



the enemv who is fighting. Just as violence is done to him who 
fights and resists, so pity is now due to the vanquished or captive, 
especially in the case of him from whom no disturbance of the peace 
is feared.' 

:iophon writes of Agesilaus : ' He instructed his soldiers not 
to punish prisoners of war as guilty of crime, but to guard them 
as men.' In Diodorus Siculus we find : ' All [the Greeks] fight 
those who resist, but spare the vanquished.' In the judgement of 
the same writer, the Macedonians who were under Alexander ' treated 
the Thebans more harshly than the law of war allowed '. 

2. In his history of the Jugurthine War Sallust, having related 
that youths had been killed after surrendering, says that that was 
done contrary to the law of war ; this is to be interpreted as against 
the nature of justice and the usage of more civilized peoples. In 
Lactantius we read : ' The vanquished are spared, and room is found 
for mercy in the midst of strife.' Tacitus praises Antonius Primus 
and Varus, the Flavian generals, because they had vented their rage 
on no one except in battle. Aristides says : ' It befits men of our 
character to constrain with arms those who resist, but to treat leniently 
those who have been overthrown.' 

In regard to prisoners the prophet Elisha addresses the king of 
Samaria as follows : ' Wouldst thou smite those whom thou hast 
taken captive with thy sword and thy bow? ' In the Children of 
Hercules by Euripides, when the herald inquires : 

Then does your law forbid to slay a foe ? 
the chorus replies : 

Yes, one whom Mars has suffered to survive the fray. 
[522] In the same play the captive Eurystheus says, 

The hands which me shall slay will not be guiltless. 



capture of Syracuse, as Plutarch says in the same passage [xix = p. 308 d]. See the same writer in 
his life of Cato of Utica [lviii=p. 787 C d]. 

4 When Cabades, the Persian king, had taken Amida by storm, and had caused a great slaughter, 
an aged pricst told him that it was not befitting for a king to kill those who were already prisoners . 
This is told by Procopius, Persian War, I [I. vii], who also says in the Persian War, II [II. ix] : ' It is 
contrary to piety to be cruel to prisoners.' In the same writer there is a notable speech of Belisarius 
to his soldiers at the capture of Naples ; Goihic War, I [I. ix]. 

To one who advised him to kill his Scythian prisoners, the Emperor Alexius in Anna Comnena 
| V 1 1 1 . vi] replied : ' Even though they are Scy thians, still they are men ; even though they are 
enemies, still they are deserving of pity.' Gregoras, Book VI [VI. viii], says : ' Those deeds which 
are done in battle and actual warfare, whatever they may be, secure pardon for the doer, on the 
gTound that his mind is beset at such a time, and that his hand in a fit of intoxication does not take 
1 M the guide and contn-lh r <>{ its actions. But when the extreme danger is over, when the mind 
has the time freely to examine and decide everything, surrender of the control of action to the hand 
tes a man's base purpose, if anything unseemly occurs.' 

Add the other passage from the same Gregoras, which we included in the notes at the end cf 

tr VII, oi this book, and Chalcocon<ly]as, Book V [ = p. 259, ed. Bekker], on a laudable custom 

of the Poles. Julian, in the second panegyric on Constantius [Orations, ii = p. 86 c], in his person 

bca the good ruler : ' Once victorious in battle he put an end to the \\ork of the sword, thinking 

it a crime to take the life of a man who has ceased to defend himself.' 



Chap. XI] The Right of Killing in a Lawful War 



739 



In Diodorus Siculus, the Byzantines and Chalcedonians, because 
they had put to death a large number of prisoners, are branded 
with this characterization : * They perpetrated crimes of extra- 
ordinary cruelty.' The same writer elswhere speaks of sparing 
prisoners x as ' a law common to all ' ; those who do otherwise, he 
says, beyond question do wrong. To spare prisoners is commanded 
by the nature of goodness and justice, as we just now heard Seneca 
say in his philosophical treatises. We see that in history those are 
praised who, when they might have been burdened or endangered 
by an excessive number of prisoners, preferred to release all rather 
than kill them. 



XII 

[lxxxii]. 



[XIII. 

xxvi.] 



Bene- 
fits, V. 
xviii 
[On Cle- 
mency, I. 
xviii] . 



XIV. The surrender of those who wish to yield upon fair terms should 
be accepted 

i. For the same reasons the surrender of those who yield upon 
condition that their lives be spared ought not to be rejected, either 
in battle or in a siege. 2 Thus Arrian says that the slaughter by the 
Thebans of persons who had surrendered was not in accordance with 
Greek custom, ' not a Hellenic killing \ Likewise Thucydides in his 
third book says : ' You have taken us into your power willingly and 
with outstretched hands. It is the Greek custom not to kill such 
persons.' In Diodorus Siculus, the senators of Syracuse declare: 
' It is worthy of a noble mind to spare the suppliant.' Similarly 
Sopater : ' It is customary to spare suppliants in times of war.' 

2. In the case of besieged cities the acceptance of surrender was 
the rule among the Romans before the battering-ram had shaken the 
wall. Caesar informed the Adratuci that he would save their city 
if they would surrender before the ram should have touched the wall. 
The custom even now obtains in the case of unfortified places, before 
cannon fire is opened ; and, in the case of more strongly fortified 
places, before an assault is made upon the walls. But Cicero, looking 
not so much to what is done as to what is right according to nature, 
declares himself upon this point as follows : ' You must both be 
merciful to those whom you have overcome by force, and accept 
the surrender of those who lay down their arms and take refuge in 
the good faith of generals, even though the battering-ram has already 
battered the wall.' 

The Jewish interpreters note that it was a custom among their 



[Anabasis 
o/ A lexan- 
der, I. ix. 
io.] 

[III. Iviii.] 



[XI. xcii.] 



Gallic 
War, II 

[xxxii]. 



On Duties, 

I [xi. 35]. 



1 Capitolinus says in his Marcus [Aurelius] Antoninus [xxiv] : ' He observed justice, even with 
regard to prisoners taken from the enemy.' 

2 [530] In [Procopius,] Gothic War, IV [IV. xii], the Romans say to the Persians, who were 
in the citadel of Petra : ' We, however, pity you who cast the yoke from your necks, and we wish 
to spare you who seek death, and to save you although you lightly despise life, as becomes Christians 
and citizens of the Roman Empire/ See De Serres in his Life of Francis I and Life of Henry II. 



740 



On the Law of War and Peace 



[Book III 



ancestors that, when they were besieging a city, they would not 
completelv encircle it, but would leave a sector open for those who 
wished to escape, 1 in order that the issue might be determined with 
less bloodshed. 



Annals, 

XII 

Jugurthine 

War [xci. 

6-7]. 

On Public 

Adminis- 

tration, I 

[iv. x]. 

viii. 
xxiii. i.] 
XLV 
[XLII. 
xxi. 3]. 



[Plutarch, 
Brutus, 
xxvi = p. 
996 A.] 



XV. Those also who have surrendered unconditionally should be spared 

The same sense of justice bids that those be spared who yield 
themselves unconditionally to the victor, or who become suppliants. 
* To butcher those who have surrendered is savage ' is the judgement 
of Tacitus. Likewise in the case of the Campsani, who had sur- 
rendered to Marius, Sallust, after relating that those who had reached 
the age of puberty were slain, adds that this was a crime against the 
law of war, that is, the law of nature. The same author says else- 
where : ' Not armed men were slain in battle, according to the law 
of war, but suppliants, after battle.' 

In Livy, as we have said already, ' By the law of war armed men, 
and those who resist, may be slain ' ; in another passage we read, 
1 who, contrary to law and right, had made war upon those that had 
surrendered.' Effort should be directed to this, that men should 
rather be driven to surrender through fear, than that they should 
be slain. Praise is given to the conduct of Brutus, who ' did not 
permit a charge to be made upon his opponents, but surrounded 
them with cavalry, ordering that they be spared, on the ground that 
they would soon be on his side.' 



8tt 

Victoria, 
On the Law 
of War, 
nos. 49 
and 60. 



XVI. What has been stated is true^ provided that no serious crime has 
preceded ; how this is to be understood 

1. Against these precepts of justice and the law of nature 
frequently exceptions are offered, which are by no means just ; as, 
for example, if retaliation is required, if there is need of inspiring 
terror, if too determined a resistance has been offered. Yet he who 
recalls what has previously been said in regard to valid reasons for 
putting to death will easily perceive that such exceptions do not 
afford just [523] grounds for an execution. 

There is no danger from prisoners and those who have sur- 
rendered or desire to do so ; therefore in order to warrant their 
execution it is necessary that a crime shall have been previously 
committed, such a crime, moreover, as a just judge would hold 



1 So Scipio Aemilianus, when about to destroy Carthage, proclaimed : ' Let those who wish, 
flee' ; Polybius [Appian, Punic Wars, xix. 130]. 



Chap. XI] The Right of Killing in a Lawful War 



741 



punishable by death. And so we sometimes see anger vented upon 
prisoners or upon those who have surrendered, or a surrender upon 
guarantee of life refused, if any who were convinced of the injustice 
of a war have still remained in arms ; if any have injured the good 
name of their enemies with monstrous slanders ; if they have violated 
their plighted^ word, or another right of nations, such as that of 
ambassadors ; if they were deserters. 

2. But nature does not sanction retaliation except against those 
who have done wrong. It is not sufficient that by a sort of fiction the 
enemy may be conceived as forming a single body ; this may be under- 
stood from our foregoing discussion on the sharing of punishments. 
In Aristides we read : ' Is it not absurd to wish to imitate, as if they 
were right, the things which you attack and say it is wicked to do ? ' 
Plutarch accuses the Syracusans on this ground, that they slew the 
wives and children of Hicetas for the sole reason that Hicetas had 
killed the wife, sister, and son of Dion. 

3. Even the advantage, which is anticipated for the future from 
frightfulness, does not suffice to give the right to kill ; but if the 
right already exists it may be among the reasons for not waiving 
the right. 

4. Furthermore a quite obstinate devotion to one's own party, 
provided only that the cause is not altogether dishonourable, does 
not deserve punishment, as the Neapolitans claim in Procopius. Or, 
if such devotion is punished in any way, the penalty should not be 
carried so far as death ; for no just judge would so decide. When, 
in a certain town, which had resisted with unusual fierceness, Alexander 
had ordered that all above the age of puberty should be slain, he 
seemed to the Hindoos to be waging war after the manner of brigands ; 
and dreading the effect of such a reputation the king began to make 
a milder use of victory. 

The same Alexander did better in wishing to spare certain 
inhabitants of Miletus, ' because he saw that they were noble and 
faithful to their cause ', to cite the words of Arrian. Phyto, the 
commander of the people of Rhegium, when hurried to torture and 
death by Dionysius because of his too obstinate defence of the city, 
cried out that he was being punished for refusing to betray the city 
and that the deity would in a short time exact retribution for the 
mistreatment. Diodorus Siculus calls this punishment wicked, 
' lawless punishment '. 

I am greatly pleased with the prayer which is found in Lucan : 

Be he the c.onqueror, who sees no need 
To draw the ruthless sword against the vanquished, 
Who does not think an impious deed was done, 
Because his countrymen took arms against him, 



On Peace, 
ii [=p. 
75 c]. 
Plutarch, 
Timoleon 
[xxxiii = 
p. 252 c] ; 
Dion [lviii 
= p. 9 8 3 E]. 



Gothic 
War, I 

W. 



Polvaenus, 
IV [iii. 

30]. 

[Anabasis 
of Alex- 
ander, I. 
xix. 8.] 



[XIV. 

cxii.] 

[VII. 
312 ff.] 



74- 7 



On the Law of War and Peace 



[Book III 



[Iliad, 

XXIII. 

176.] 



provided, nevertheless, that under the name of countiymen we under- 
stand not those of this or that district, but fellow-citizens of that 
common society which embraces all mankind. 

5. Much less even is slaughter justified by resentment at some 
loss that has been sustained, as we read that Achilles, Aeneas, and 
Alexander avenged their friends with the blood of prisoners or of 
those who surrendered. Appropriately, therefore, Homer chants 
this verse : 

An evil deed he pondered in his heart. 1 



[Deut., xx. 
10.] 



On Anger, 
II. x. 



[II. 198 fif.] 



For Cluen- 
tius [xlvi. 
128]. 

[On Public 
Adminis- 
tration, I. 
vi. 4.] 



XVII. // is right to spare those who are guilty, if their number is very 
great 

Even where the crimes are such that they may seem worthy of 
death, it will be the part of mercy to give up something of one's full 
right because of the number of those involved. Such clemency, we 
see, began with God Himself ; for He desired that the Canaanites 
and their neighbours, by far the most wicked of peoples, should have 
the offer of a peace, [524] which would grant them their lives 
upon condition of their payment of tribute. Here applies the saying 
of Seneca : ' The severity of the general is directed against individuals, 
but pardon is necessary where the whole army has deserted. What 
takes away a wise man's anger ? The crowd of wrongdoers.' 2 Per- 
tinent also are these verses of Lucan : 

Famine, the frenzy of the sea, and swift disaster, 
Or pestilence of earth and sky, or war's slaughtering, 
Have oft laid low so many youths in hateful death, 
But never punishment. 

' The drawing of lots was devised that an undue number might 
not suffer punishment,' says Cicero. Sallust says to Caesar : ' Let 
no one summon you to cruel punishments or harsh judgements, 
by which the state is more afflicted than remedied.' 

XVIII. Hostages should not be put to death unless they have themselves 
done wrong 

1. What decision according to the law of nature should be 
rendered in regard to hostages may be gathered from what we have 

1 That to later ages this seemed cruel is noted by Servius, On the Aeneid, X [X. 519]. 
' ' The sin that is committed by many goes unpunished,' says the Scholiast on Juvenal [ii. 46], 
Lucan [V. 260]. In Xiphilinus, who quotes from Dio [LV. xx], Livia says : ' If any one 
wishes to punish all such deeds rigorously, he does not see th;it he is thereby led to slay thc 

rity of men.' Augustine writes b his Letiers, lxiv [xxii. 5] : 'Rathei by admonitioD than t>y 
. In this way in fact one must deal with a multitude of sinners ; but severity is to be exercised 
I the crimes of a few.' 
Add Gail, De Pace Publica, II. ix. 36 [II. ix. 37]. 



Chap. XI] The Right of Killing in a Lawful War 



743 



said already. In former times it was commonly believed that each 
person had over his own life the same right which he had over other 
things that come under ownership, and that this right, by tacit or 
expressed consent, passed from individuals to the state. It is, then, 
not to be wondered at if we read that hostages who were personally 
guiltless were put to death for a wrong done by their state, either as 
though done by their individual consent, or by the public consent in 
which their own was included. But now that a truer knowledge has 
taught us that lordship over life is reserved for God, it follows that 
no one by his individual consent can give to another a right over life, 
either his own life, or that of a fellow-citizen. 

Consistently with this point of view Agathias relates that to the 
good general Narses it seemed atrocious to exact punishment from 
innocent hostages. Other writers say the same of other generals. 
They cite also the example of Scipio, who said that he would not be 
severe with innocent hostages, but with the individuals themselves 
who had been guilty of defection, 1 and that he would exact punish- 
ment not from an unarmed foe, but from a foe in arms. 

2. Furthermore some of the modern jurists, men not without 
standing, say that such agreements are valid if they are confirmed 
by custom. This I admit, if by right they mean mere freedom from 
human punishment, which in the discussion of this subject often 
passes under such a name. If, however, they consider that those 
who take the life of any one on the justification of an agreement 
alone are exempt from wrongdoing, I am afraid that they are both 
deceived themselves and by their dangerous authority deceive others. 

It is clear that if he who comes as a hostage is, or previously 
was, of the number of great criminals, or has subsequently broken his 
pledge given in an important matter, it may be that his punishment 
will not be unjust. 

3. But when Cloelia, who had come as a hostage, not of her 
own accord 2 but by the command of the state, made her escape by 
swimming the Tiber, her ' courage was not only pardoned, but even 
honoured by the Etruscan king ', to use the words of Livy in his 
account of the incident. 



Victoria, 
On ihe Law 
of War, 
no. 43. 



I [xii]. 



Livy, 
XXVIII 
[xxxiv. 9]. 



Menochio, 

De 

Arbitrariis 

Iudicum 

Quaestion- 

ibus, vii. 



II [xiii. 9]. 



XIX. All useless fighting should be avoided 

This remains to be added, that all engagements, which are of no 
use for obtaining a right or putting an end to a war, but have as their 



1 Julian says the same in Eunapius, Selections on Embassies, ix [=Fragmenta Historicorum Grae- 
corum, IV, 12, p. 18]. 

2 Cf. the story cf the hostages who tried to withdraw frcm this obligation, and were cherefore 
punished, in Nicetas, Book II [Isaac Angelus, II. vi]. 



744 



On the Law of War and Peace 



[Book III 



Acr. V 
[Arrian, 
Anabasis, 
I. xxii]. 



[Jugur- 
thine War, 
xcii. 4.] 

[Germany, 

XXX.] 



purpose a mere display of strength, that is, as the Greeks say, c an 
exhibition of strength rather than a combat against the enemy ', are 
incompatible both with the duty of a Christian and with humanity 
itself. Consequently rulers, who must render account of the useless 
shedding of blood to Him in Whose name they bear the sword, 
should strictly forbid such combats. In fact, Sallust praised the 
generals who achieved victory without staining their army with 
blood. Tacitus says of the Chatti, a people of known courage : ' Raids 
and chance encounters l are rare among them.' 



1 Plutarch censures Demetrius [Detnetrius, xl =p. 908 c], 4 because he thrust his soldiers into danger, 
and exposed them to battles, rather from zeal for fame than for the sake of a real advantage.' 



CHAPTER XII 



MODERATION IN LAYING WASTE AND SIMILAR THINGS 



I. What devastation may be lawful, and in what degree 

1. In order that any one may be able to destroy another's 
property without doing wrong, it is requisite that one of these three 
conditions should precede : 

A necessity, such as should be understood to have been excepted 
in the first institution of ownership. An example would be that 
a person in order to escape imminent danger should cast into a river 
the sword of a third party, which a madman is about to use. In 
this case, however, we have elsewhere said that, in accordance with 
the better view, there remains an obligation to make good the loss. 

Or, a debt arising from an inequality, it being understood that 
the thing destroyed is reckoned as received for that debt, since other- 
wise the right would not exist. 

Or, a deserving of evil, for which such punishment may be an 
equivalent, or the measure of which is not exceeded by the punish- 
ment, [531] for, as a theologian of sound judgement observes, equity 
does not suffer a whole kingdom to be laid waste because flocks have 
been driven off or some houses burned. This was recognized also 
by Polybius, who does not wish punishment in warfare to be carried 
beyond all bounds, but only so far as necessary that crimes may be 
expiated in a just way. 

These reasons, which are applicable only within proper limits, 
cause the absence of wrong in the destruction of another's property. 

2. But, unless a motive of utility commends such a course, it 
would be foolish to injure another without securing any good for 
oneself. Those, therefore, that are wise are usually influenced by 
considerations of utility. Of such considerations the most weighty 
is that which was pointed out by Onesander : ' Let him remember 
to ruin the enemy's country, to burn and devastate it. For a lack 
of money and crops causes war to slacken x as much as an abundance 
causes it to flourish.' In accord with this is the saying of Proclus : 
1 It is the duty of a good general to weaken the resources of the enemy 



II. ii. 9. 



Victoria, 
On the Law 
of War, 
nos. 52 
and 56. 
V[i.] 



Strate- 
gicus, vi. 



[On Plato's 
Republic, 
III. iii.] 



1 Philo, On the Contemplative Life [ii = p. 891 d] : ' Enemies are accustomed to lay waste hostile 
territory and to denude it of trees, in order that the enemy may yield the more readily through lack 
of necessities.' The same writer says in his On Curses [i] : ' They bring upon themselves . twofold 
misfortune, want for their friends, abundance for their foes.' 

745 



746 



On the Law of War and Peace 



[Book III 



:iv. ix. 8.] 



Herodo- 
tus, I 

Polvbius, 

Frontinus, 
Stratege- 
mata. III. 

I 

VII: 
XXXIV 

[xxx\ 

Caesar, 

Gallic 

VI 
[iiiand vi]. 



[Deut., xx. 

19, 20.] 



On the 
Creation of 
Magis- 
trates [xiii]. 



in everv way. ? Curtius says of Darius : ' He believed that an enemy, 
who had nothing except that which he had seized by pillage, could 
be defeated by lack of supplies.' 

3. In fact that kind of devastation must be tolerated which 
compels the enemy to sue for peace in a short time. This method 
of warfare was employed by Alyattes against the Milesians, by the 
Thracians against the Byzantines, by the Romans against the Cam- 
panians, the Capenates, the Spaniards, the Ligurians, the Nervii, and 
the Menapii. 

Xcvertheless, if you examine the matter aright you will find that 
such depredations are ordinarily committed from motives of hatred 
rather than from considerations of prudence. It usually happens 
either that those conditions which justify devastation are lacking, or 
that there are other more cogent reasons which advise against it. 

II. Devastation should be refrained from if the area is profitable for us 
and out of the power of the enemy 

1. This will happen, first, if our occupation of fruitful ground 
is such that it cannot yield produce for the enemy. That is the 
particular point of the divine law, which ordains that wild trees be 
employed in making walls and military structures, but that fruit- 
bearing trees be preserved for purposes of food, with the explanation 
that trees, unlike men, cannot rise up against us in battle ; a restric- 
tion which Philo, 1 by similar reasoning, extends to fields under cultiva- 
tion, adding to the law these words : 

Why will you be angry with inanimate things, which are both mild and productive 
of wholesome fruits ? Do trees, like men who are enemies, show signs of hostility, so that 
they must be uprooted for the things which they are doing or threaten to do ? On the 
contrary, they are of use to the victors, and furnish them with a supply of the things 
which necessity demands, yes even those things which contribute to their pleasure. 
It is not man alone that pays tribute, for trees at fixed seasons bear richer tribute, such 
that without it man cannot live. 



1 Another passage of the same writer, De Humanitale [De Carilale, xx .], is also worthy of being 
transcribed here : 

[537] Moses, in dispensing justice even more freely, makes a very ample and liberal use thereof, 
in descending from pcrsons endowed with reason to dumb animals, and from duinb anhnals, again, 
to the things which spring from the ground ; and of these we must now speak, since we have already 
discussed men as being of the most importance, and other creatures which are capable of feeling. 
Moses wisely forbade the cutting down of cultivated trees, or the ruinous cutting down of crops 
before they are ripe, or the destruction of any products of the soil whatsoever, to the end that the 
human race may be supplied with an abundance of food ; and not only an abundance of necessitii > 
but also of the things which contribute to a more luxurious life. The crops of the field are in fact 
a necessity, desi^ncd for the nourishment of men ; while all the varied fruits of thc treei COOtribute 
heir luxuries, although , when other thingi fail, take the place ol nourishing ioods. 

to sanction even the devastation of hostile territory ; cspecially 
does he command enemies to refrain from cutting down trees, because he considers it unjust that 
the aiiKer which has been aroused against men should be expended upon those things which arc 
the cause of no evil. By this very thing he teaches us not to have regard to thc pretenl time only, 



Chap. XII] Moderation in Laying Waste and Similar Things 747 

Moreover, in discussing the same passage, Josephus says that, if 
trees could speak, they would cry out that since they are not the 
cause of war it is wrong for them to bear its penalties. Unless I am 
mistaken, this is the source of the Pythagorean maxim in Iamblichus : 
' Let it be unlawful to injure or cut down a cultivated and fruitful 
tree.' 

2. Furthermore, in describing the customs of the Jews, in the 
f ourth book of his work On Abstaining from Animal Food, Porphyry x 
extends this rule (interpreted, as I think, in the light of custom) 
even to living things employed in agricultural work. He says that 
Moses commanded that these too should be spared in war ; the 
writings of the Talmud and the Hebrew interpreters add that this 
law is to be extended 2 to anything whatever which may be destroyed 
without cause, as touching the burning of buildings, or the destruc- 
tion of supplies which can be eaten or drunk. 

In harmony with this law is the wise moderation of the Athenian 
general Timotheus, who, as Polyaenus relates, ' did not permit 
a house or a homestead to be destroyed, or [532] a fruit-bearing tree 
to be cut down'. There is also the law of Plato, in the fifth book 
of the Republic : ' Let not the land be ravaged, nor the houses set 
on fire.' 

3. Still more binding will this restriction be after a complete 
victory. Cicero disapproved of the destruction of Corinth, even 

for the reason that nothing remains in the same condition, but all things are subject to vicissitudes 
and changes ; hence it may easily happen that those, who are at present enemies, may again become 
allies, after they have joined in conferences and treaties. But it is a harsh thing to deprive friends 
of the necessities of life, when, in view of the uncertainty of the future, those things which may be 
useful should have been preserved for them. 

It has been most truly said by the ancients that friends should be treated as though it were 
thought that no enmities could arise, and that offences should be so dealt with that friendship may 
be hoped for ; that is, that each one should have in his mind, for his own protection, some measure 
of reserve, and not be obliged soon to repent of his excessive violence, through having revealed 
his purposes too openly in words and deeds ; [538] and not be obliged to accuse himself, when 
the matter can no longer be remedied. 

This wise saying, furthermore, should be observed by states, that in time of peace they should 
prepare the things which are necessary for war, but in time of war the things necessary for peace ; 
and that they should neither place excessive confidence in their friends, as if these could not be 
diverted to the opposite side, nor utterly distrust their enemies, as if these could never be restored 
to friendship. But even if nothing ought to be done for an enemy in the hope of effecting a recon- 
ciliation, certainly none of the things which the scil bears is hostile, but all are friendly, and all 
are useful ; indeed the cultivated plants are particularly necessary, seeing that their fruits are either 
nutritive or take the place of something nutritive. 

War should not be waged on things that have nothing to do with war ; one should not cut, 
nor burn, nor tear up by the roots the things which nature has tenderly reared with its streams of 
water and its summer skies, that they might bear tribute to men as to kings. For she, as the 
excellent and common ruler of all things, has taken care to secure undamaged force and vigour 
not only for animals, but also for the offspring of the soil, especially for cultivated plants, because 
they require greater care, and are not so prolific as wild plants, but require skilled cultivation to 
attain a vigorous growth. 

1 His words are [On Abstainingfrom Animal Food, IV. xivj : ' The law also commands us to spare 
animals that are man's associates in toil, even on the land of the enemy ; so that it is not permitted 

to kill them.' .,,,., . , 

2 But, on the other hand, they wish to restnct lt by adding the exception : unless tree<. situated 
in the suburbs should interfere with the javelin-throwers. 



[Ant. of 
the fews, 
IV. viii. 
42.] 

[Life of 
Pythago- 
ras, xxi. 
99-] 



[III. x. 5.] 



[V. xvii = 
47i a.] 

On Duties, 

I [xi. 35]. 
On His 
House 
[xxiii. 60]. 



74 8 



On the Law of War and Peace 



[Book III 



XXVI 

[xvi]. 

Trojan 
Women 

[285 ff.]. 



Joshua, vi. 



2 Kings, 
iii. 19. 



though Roman ambassadors had been shamefully treated there ; 
and he also characterizes as horrible, criminal, and steeped in the 
depths of hatred, a war which is waged against walls, roofs, columns, 
and doors. Livy praises the leniency of the Romans after the conquest 
of Capua, because they did not by fire and destruction vent their 
anger upon innocent buildings and walls. 1 In Seneca, Agamemnon 

says : 

For my part I will confess (thy pardon, Argive land !), 
I wished to see the Phrygians brought low and undone ; 
But Troy destroyed and razed to earth such fate 
I should have censured. 

4. It is true that sacred history teaches us that certain cities 
were doomed to destruction by God, and that even contrary to the 
general law it was ordered that the trees of the Moabites should be 
cut down. This, however, was not done out of hatred of the enemy, 
but to show a just abhorrence of their crimes, which were either 
publicly recognized as such, or in the judgement of God were worthy 
of such punishment. 



III. Devastation should be refrained from if there is good hope for 
a speedy victory 

1. In the second place, what we have said will hold good even 

where the possession of land is in doubt, if there is good hope of 

a speedy victory, of which the prize will be both the land and its 

xi [vi. 1]. fruits. Thus, as Justin relates, Alexander the Great prevented his 

soldiers from devastating Asia, ' saying that they must spare their 



1 On this subject there is a notable letter of Belisarius to Totila [in Procopius], Gothic War, III 
[III. xxii] : 

Previously it was thought that to construct works of beauty was characteristic of wise men 
and those versed in civilized life ; that to destroy them, after they had been erected, was the act of 
fools and persons who did not blush to leave to posterity marks of their stupidity. It is agreed 
that Rome is the greatest and most worthy of admiration of all the cities which the sun beholds. 
This pitch of greatness and splendour it has not attained by the labour of one man alcne, nor in 
a brief time ; but very many kings and emperors, a vast line of eminent men, many centuries, and 
a marvellous accumulation of wealth, have brought together here, among other conditions, the 
leading workmen ; and so by the gradual construction of so great a city [539] they have left 
monuments of their worthiness to succeeding generations. To destroy this city, therefore, would 
be to do a wrong to the human race of all ages, by taking from those who have gone before the 
memory of the praise that is due to them, and from those who are to come the pleasure of this spectacle. 
Since this is so, reflect that one of two things is inevitable, either you will be conquered by the 
Emperor in this war, or your fortune will be the better. If you are victorious, and the city has been 
destroyed, you will have lost what is not another's but your own. If it has been saved, you will 
enjoy the most beautiful of all possessions. If the lot has been cast against you, and Rome, through 
your efforts, is safe, a feeling of gratitude toward you will remain with the victor ; but if Rome 
shall have been destroyed your lot will lie beyond hope of mercy. Not only will you gain nothing 
by the act, but the reputation which it deserves from all men will follow you. Such reputation is 
ready for you, accordmg to your choice ; for the repute enjoyed by those in power corresponds 
with their actions. 



See also the law of Frederic I in Conrad, Abbot of Ursperg 
Palatine, the CkronicUs of Melanchthon. 



and, with regard to Frederic Count 



Chap. XII] Moderation in Laying Waste and Similar Things 749 



own property, 1 and not destroy the things which they had come to 
take possession of.' So Quintius, when Philip was traversing Thessaly 
with a band engaged in plundering, for his part exhorted his troops, 
as Plutarch says, to pursue their march as though through a district 
which had been given up and already made their own. When urging 
Cyrus not to turn Lydia over to his soldiery to lay waste, Croesus 
said : ' You will not plunder my city, nor my possessions, for in no 
way do these things now belong to me ; they are yours yours are 
the things they will destroy.' 

2. To those who do otherwise, the words of Jocasta to Polynices 
in Seneca's Women of Thebes are not ill suited : 

Seeking to win your country you destroy it ; 
To make it yours, you wish to make it nothing ; 
Your cause is harmed by this, with hostile arms 
You burn the land, lay low the ripened crops, 
And terror spread 

Through all the fields. No one so wastes his own. 
What you bid ruin with fire, with sword to reap, 
You hold to be another's. 



Flaminius 
[v = 37id]. 



Herodo- 
tus, I 
[lxxxviif. 



[Phoeni- 
cian 
Women, 
558 ff.] 



There is a similar thought in these words of Curtius : ' What- 
ever they had not ruined, they confessed belonged to the enemy.' 
Not far diflerent are the arguments urged by Cicero in his Letters to 
Atticus against Pompey's plan of destroying his own country by 
starvation. On this ground Alexander the Aetolian censures Philip 
in the seventeenth book of Polybius, whose words, according to the 
Latin version of Livy, are as follows : 

In war he (Philip) does not fight in the open field, nor engage in pitched battles, 
but he burns and plunders cities as he flees, and when vanquished spoils the victor'3 
prizes. Such was not the custom of the ancient kings of Macedon ; they were wont 
to fight on the field of battle, and to spare cities, so far as they could, in order that they 
might have a wealthier empire. What sort of a policy is it, to destroy the things the 
possession of which is at stake, and to leave for himself nothing except the war l 



[IV. xiv. 
2.] 

IX. vii [4], 
ix [2], 

x[3l. 



[XVII. iii.] 

XXXII 

[xxxiii. 
11-13]- 



[533] IV* Devastation should be refrained from if the enemy has 
means of subsistence from other sources 

1. In the third place, the same thing will happen if the enemy 
can have means of subsistence from another source, for instance, 



1 When Gelimer and the Vandals were besieging Carthage, they neither plundered nor laid waste 
the land, but took care of it as of their own ; Procopius, in the opening of the second book of the 
Vandalic War [II. i]. 

I read in Helmold, I. Ixvi : ' Is not the land which we lay waste our land, and the people whom 
we assail our people ? Why, therefore, are we found to be our own enemies, and wasters of our own 
revenues ? ' 

With this agrees what Bembo has in Book IX, fol. 149 verso. See Paruta, again, against the 
Germans, History, Book VI. 



750 



On the Law of War and Peace 



[Book III 



[I. lxxx 

and lxxxi.] 



[Training 
of Cyrus, 
24.] 

;m. x. 5 

and 9.] 
Economics, 
23l- 
[Spanish 



Decretals, 
I.xxxiv. 2. 



Codt, 
VIII. xvi. 
7. 



if the sea, or if other boundaries, shall be open. According to 
Thucydides, Archidamus, in the speech in which he tried to dissuade 
his fellow Lacedaemonians from war against the Athenians, asks what 
hopes they have in waging war : Do they perhaps hope that, because 
they enjoy military superiority, it is easy for them to lay waste the 
land of Attica ? But, he said, the Athenians have other lands under 
their sway (meaning Thrace and Ionia) and can obtain what they 
need through importations by sea. 

Under such conditions, therefore, it is best to leave agriculture 
undisturbed even along the common frontier. This we see in recent 
times was the arrangement for a considerable period in the war of 
the Netherlands against the Empire, with the payment of tribute to 
either party. 

2. This is in accord with the ancient custom in India, where, 
as Diodorus Siculus x says : ' The farmers are undisturbed and, 
as it were, held sacred ; in fact even in the vicinity of camps and 
armies they pursue their tasks secure from danger.' He adds : ' Men 
neither burn the enemy's fields, nor cut down the trees.' Later : 
' Xo enemy inflicts harm upon any farmer, but this class of men, as 
being common benefactors, is accorded protection from all wrong- 
doing.' 

3. Xenophon says that it was agreed also between Cyrus and 
the Assyrian king that * there should be peace with the farmers, 
war with those who bore arms \ So Timotheus 2 rented the most 
fertile part of the land to husbandmen, as Polyaenus relates ; nay 
more, as Aristotle adds, he even sold the crops to the enemy, and paid 
his soldiers with the money. Appian bears witness that this was 
done also by Viriathus in Spain. As we have seen, in the war of the 
Netherlands and the Empire which we have mentioned, this arrange- 
ment was carried out with the highest degree of reason and profit, 
and evoked the admiration of foreigners. 

4. The canons, teachers of humanity, established these practices 
for the imitation of all Christians, as those who ought to exercise 
and who profess a greater degree of humaneness than others ; and so 
they seek to protect from the perils of war not merely the farmers, 
but also the animals which they use in cultivation and the seeds 
which they keep for sowing. The reason is assuredly the same as 
that for which the civil laws forbid that things useful for ploughing 



1 Book II [II. xxxvi]. 

* Plutarch gives the same information with regard to the Megarians, in his Greek Questions [xvii = 
p. 295 B C.]. Of Totila, when he was besiegin iy, Gothic War, III 1 1 1 1. xiii] : ' In 

the meantime he did no harm to the fanncrs tnroughoul the wlmle of I taly, but ordered them to till 
their lands continuously, without fear, just as they had been accustomed, provided that they paid 
tribute to him.' 

Cassiodorus says, [Variae,] XII. v : ' It is the chief glory of the defemkrs if, while they seem to 
be protecting the appointed districts, the farmers do not cease tc cultivate thcir inhcrited possessions.' 



Chap. XII] Moderation in Laying Waste and Similar Things 751 



be taken as a pledge. In ancient times among the Phrygians and 
Cyprians, and later among the Athenians and Romans, 1 it was con- 
sidered a crime to kill a plough-ox. 

V. Devastation should be refrained from if the thing itself is of no use 
in furnishing resources for war 

In the fourth place, it happens that certain things are of such 
a nature that they are of no value for making or waging war. Such 
things reason wishes us to also spare, during the continuation of the 
war. Here applies the speech of the Rhodians to Demetrius, 2 the 
taker of cities, on behalf of the portrait of Ialysus, at it appears in 
the Latin translation of Gellius : 

What is your reason for wishing to destroy that likeness by setting fire to the temple ? 
If you conquer us all, and take this whole city, by your victory you wil! obtain that 
portrait also, safe and intact. But if you prove to be unable to conquer us, we ask you 
to consider, lest you incur the bad repute of having waged war against the dead Proto- 
genes because you were unable to conquer the Rhodians. 

Polybius says it is a sign of an infuriated mind to destroy those 
things which, if destroyed, do not weaken the enemy, nor bring gain 
to the one who destroys them ; such things are temples, colonnades, 
statues, and the like. Marcellus, whom Cicero praises, ' spared all 
the buildings of Syracuse, public and private, sacred and profane, 
just as if he had come with his army to defend them, not to capture 
them.' The same author later says : [534] ' Our ancestors left 
to them the things which seemed agreeable to the vanquished, but 
of small value to us.' 



Nicholas 
of Damas- 
cus [frag. 
19, p. 148, 
edit. Din- 
dorf]. 
Aelian, 
[Var. 
Hist.,] 
V. xiv ; 
Dio Chry- 
sostom, 
Orations, 
lxiv [=p. 
592]. 



[Attic 
Nights,] 
XV. xxxi. 



V[xi]. 



Against 
Verres, 
Act II 
[IV. liv. 

120]. 

IV [Ix. 
134]. 



VI. The principle stated is particularly applicable to things that are 
sacred or connected with things that are sacred 

I. While what has been said holds true of other things of 
artistic value, for the reason which we have already given, there is 
a particular reason in the case of those things which have been devoted 
to sacred uses. Although such things also, as we have said elsewhere, 
are public in their own way, and so, according to the law of nations, 
are violated with impunity, nevertheless, if there is no danger from 
them, reverence for divine things urges 3 that such buildings and 



[III. V. 2.] 



1 Also in the Peloponnesus ; Varro, On Farming, II [II. v. 4]; Columella, VI, beginning. To these 
add Pliny, [Natural History,] VIII. xlv ; Aelian, History of Animals, II, last chapter ; Porphyry, 
On Abstaining, II [II. xxviii] ; Vegetius, On the Veterinary Art, III [prolegomena, vil. 

2 See on this topic Pliny, Natural History, VIII. xxxviii [VII. xxxviii], and XXXV. x ; and 
Plutarch, Demetrius [xxii =p. 898 E]. The same idea is found in the letter of Belisarius which we have 
just quoted [III. xii. 2. 3, note]. 

3 Polybius says in the Excerpta Peiresciana [p. 45] : ' It is a mark of supreme folly to act impiously 
toward the gods because you are angry with men.' Rightly, beyond question ; for Severus also, as 
Lampridius reports [Life of Alexander Severus, xlix], declared in a rescript : ' It is better that God 

1569.27 3 E 



752 



On the Law of War and Peace 



[Book III 



Sylvcster, 
word 
btllum, 
in, n 
[IV. x 



6.] 

[XIII. 
316 fif.J 



XLII [iii. 
91. 



[Livy,] 

XLI\ 

21. 



IV [i. 13]. 



II [i]. 



their furnishings be preserved, particularly among those who worship 
the same God, in accordance with the same law, even if perhaps 
thev disagree in respect to certain dbctrines or points of ritual. 

2. Thucydides says that it was the law among the Greeks of 
his time ' that those, who made an attack upon hostile territory, 
should refrain from doing harm to sacred places '. When Alba was 
destroyed by the Romans, Livy says that they spared the temples of 
the gods. Of the Romans at the taking of Capua, Silius, in his 
thirteenth book, speaks thus : 

Lo, through their breasts there creeps a silent feeling 
Of sudden awe, and soothes their savage hearts, 
That they wish not for fire and torch, nor now 
That temples fall in ashes in one pyre. 

Livy recounts that it was said in criticism of Quintus Fulvius 
the censor, ' That he involved the Roman people in irreverence by 
building temples with the ruins of temples, as though the immortal 
gods were not everywhere the same, but some were to be wor- 
shipped and adorned with the spoils of others.' But Marcius Philippus, 
upon arriving at Dium, ordered his encampment to be laid out in 
the shadow of the temple itself, in order that nothing in the sacred 
place might be profaned. Strabo relates that the Tectosages, who 
with others had carried off the treasures from Delphi, consecrated 
these at home with an addition, in order to appease the deity. 

3. To come now to Christian peoples, Agathias records that the 



should be worshipped there in any way at all, than that the place should be turned over to keepers 
of cook-shops.' 

Pliny, Natural History, XVI. xi [XVI. xl], says of Hannibal : ' He was led by a feeling of reverence 
to spare the temple of Diana of Saguntum.' ' And we have not deprived our foreign foes of their temples,' 
is a remark found in Appian, Civil Wars, II [II. xix. 140]. 

The Latin author of the life of Agesilaus [Nepos, Agesilaus, iv] says of him : ' Not only on Greek 
soil did he make it a practice to maintain the sanctity of the temples of the gods, but even in the 
country of the barbarians he preserved the images and altars with the greatest reverence. He used 
to say that he wondered [540] that those who harmed their suppliants were not included in the 
number of the sacrilegious, or that those who caused reverence to decline were not punished more 
heavily than those who plundered temples.' 

Regarding the scrupulosity of Agesilaus in this matter see also Plutarch [Agesilaus, xix = p. 606 a]. 
The same writer, in his Sulla [xii=p. 459 cd], accords this praise equally to many Romans: 'Some 
called to mind Flaminius, others Manius Aquilius and Aemilius Paulus ; of these the former, when 
he had driven Antiochus from Greece, and the latter, when they had subdued the kings of Macedon, 
not merely spared the temples of the Greeks, but enriched them with gifts and increased their reputation 
and sanctity.' 

Add also Vitruvius, Book II [II. viii. 8] ; Dio Cassius, XLII [XLII. xlviii] ; Plutarch, Caesar [xxvi 

= p. 720 E] ; Brodeau, Miscellanea, V [V. xxix]. Gabaon, the Moor, although not himself a f hristian, 

! honour to be shown to the churchefl of the fhristians ; this was contrary to the conduct of the 

Vandals, with whom hv. hoped that the God of thc Christians, whoever He might be, would be angry. 

vouched for by Procopius, Vandalic War, I [I. viii], who says also, Persian War, II [II. ix], that 

Chosroes, a Persian and w>\ I < hrist ian, spared the church <>f t he ( 'hi isl ians of Antioch. 

lustinian, as the same author relates, Vandalic War, II [II. ix], did not dare to keep in his 

postession the objects which Vespasian had carried off to Rome ErbflO the Temple at Jcrusalem, and 

Genserichad found in Rome and transported toAfrioa, Benjamic the Jew, in his itimrary, beaii 

he reverence whi< ifested bv the Mohammedani for the place in which the bones 

< hiel and the three companions of Daniel had been interred. 



Chap. XII] Moderation in Laying Waste and Similar Things 753 



Franks spared the temples, seeing that they were of the same religion 
as the Greeks. In fact it has been customary also to spare men on 
account of religious edifices, conduct which (not to mention pagan 
peoples, which afford many examples, since, in fact, writers call this 
custom ' a law common to the Greeks ') in the case of the Goths who 
captured Rome x is praised by Augustine as follows : 

To this 2 the places of the martyrs and the basilicas of the Apostles, which in the 
midst of the sack received the vanquished that fled to them, both Christian and pagan, 
bear witness. So far the gore-stained enemy raged ; there the madness of butchery 
was stayed. Thither were led by pitying enemies those whom (for * those whom (quibus) ' 
I should prefer ' who (qui) ', 3 for he distinguishes the milder from the more savage) 
they had spared outside these places, that they might not be attacked by those who 
did not have the same feelings of mercy. Nevertheless, after those, who themselves 
elsewhere were savage and raged in the manner of enemies, came to these places 4 where 
that was forbidden which was elsewhere permitted by the law of war, all their savage 
frenzy was checked, and their desire to take captives was assuaged. 



Diodorus, 
XIX 

[lxxiii]. 
City of 
God, I [ij. 



VII. The principle is applicable also to consecrated things 

1. What I have said of sacred things must also be understood 
of consecrated things, also of structures erected in honour of the 
dead ; for these cannot be violated without contempt for human 
feeling, even though the law of nations does accord impunity to the 
venting of anger against them. The jurists say that that is the 
highest reason which acts in defence of religion. The pious utter- 
ance of Euripides in his Trojan Women relates as much to consecrated 
as to sacred things : 

Mad is the man who cities devastates, 
[535] With temples and the Manes' consecrated seats. 

For him there waits the doom of like destruction. 

Apollonius of Tyana thus interpreted the fable of the giants assaulting 
the sky 5 : ' That they did violence to the temples and seats of the 
gods.' In Statius, Hannibal is termed sacrilegious because ' he set 
torch to the altars of the gods \ 

1 Under the Arian Alaric. The following notable deed is recorded of him by Cassiodorus, [Variae,] 
XII. xx : 4 When King Alaric had received the vessels of the Apostle Peter from his men who brought 
them, he held an inquiry ; having learned the state of affairs, he ordered that they should be carried 
back to the sacred portals by the hands of those who had carried them off, that the greed, which from 
lust of plunder had committed the crime, should expiate its excess by the most lavish devotion.' 

2 Isidore has quoted this passage in his Gothic Chronicles, on the year 447. 

3 Orosius, in relating the story, VII. xxviii, shows conclusively that this should be the reading 
[in which case the English should be : ' Thither they were led by pitying enemies who had spared,' &c.]. 

4 These same churches of the Apostles were spared by the Goths under Witiges, when they were 
besieging Rome, as Procopius testifies, Gothic War, II [II. iv]. Even for barbarians and non-Christians 
flight to such places brought protection ; see Zosimus, IV [IV. xl], on the barbarian Tomitani. 

Add the Swiss law in Simler [p. 302, ed. Elzevir] ; Nicetas, Alexis, son of Manuel [v] ; and 
the same author, Andronicus, I [I. ix], where he blames the Sicilians for having violated the churches 
of Antioch. 

5 As Diodorus Siculus [Excerpta from Book VII] also interpreted another fable regarding Epopeus. 

3E2 



Dig. XI. 
vii. 43. 

[lines 
95 ff.] 



[Philostra- 
tus, Life 
of Apollo~ 
nius, V. 
xvi.] 
[Silvae, 
IV. vi. 82.] 



754 



On the Law of War and Peace 



[Book III 



Punic 
Wars 

[xx. 133]. 

XLII 

[xlviii]. 



[IV. Iv. 

[On 

Divina- 
tion, I. 
xxxvii 

Si.] 

[XXIX. 

xviii. 4.] 

XIV 
Pxiv]. 

[XXXI 

xxvi. 11 
xxx. 4; 

xxxi. 3.] 

[II. vii ] 
[V. xi.] 



Scipio, having taken Carthage, bestowed gifts upon his 
soldiers, ' excepting ', says Appian, ' those who had sinned against 
the temple of Apollo '. As Dio relates, Caesar ' did not dare to 
overthrow ' the trophy erected by Mithridates, ' because it was 
consecrated to the gods of war \ Marcus Marcellus, being restrained 
bv religious scruples, did not touch the things which victory had 
made profane, says Cicero in his fourth Against Verres ; and he 
adds in the same passage that there are some enemies who in time of 
war observe the laws of religion and custom. The same author 
elsewhere said that the war waged by Brennus against the shrine of 
Apollo was wicked. 

The action of Pyrrhus, who plundered the treasures of Proser- 
pina, is called by Livy disgraceful and insulting to the gods. Diodorus 
characterizes a similar act of Himilco as ' impiety ' and ' a crime 
against the gods \ Again, Livy calls the war of Philip wicked, as 
though waged against the gods of the upper and the nether worlds ; 
also madness, and an aggregate of crimes. Of the same war Florus 
says : ' Philip exceeded the rights of the victor in his violence to 
temples, altars, and tombs.' * Touching the same affair, Polybius 
adds this judgement : ' Who will deny that, to set to work to destroy 
what will neither prove useful to us in waging war, nor disadvan- 
tageous to the enemy, particularly temples and the statues and 
similar ornaments which they contain, is the work of a mind that is 
wicked and maddened with rage ? ' In the same passage he does not 
accept the excuse of revenge. 

VIII. The advantages which follow from such moderation are pointed 
out 

1. It is, in truth, not strictly a part of our purpose to inquire 
at this point what is advantageous ; we desire rather to restrict the 
unrestrained licence of war to that which is permitted by nature, or 
to the choice of the better among the things permitted. Neverthe- 
less virtue itself, in low esteem in the present age, ought to forgive 
me if, when of itself it is despised, I cause it to be valued on account 
of its advantages. 

In the first place, then, such moderation, by preserving things 
which do not delay the war, deprives the enemy of a great weapon, 
[i. ixxxii.] despair. There is a saying of Archidamus in Thucydides : ' Think 
of the enemy's land as nothing else than a hostage, the better the more 
it is cultivated ; therefore it must be spared, so far as is possible, 
that despair may not make the enemy harder to conquer.' The 

1 A similar act of Prusias is censured by Polybius, whose words are preserved by Suidas on the 
word Prusias, and in the Excerpla Peiresciana [De Virluiibus et Vitiis, I, p. 290]. 



Chap.XII] Moderation in Laying Waste and Similar Things 755 

same policy was followed by Agesilaus x when, contrary to the view 
of the Achaeans, he let the Acarnanians sow their crops in freedom, 
saying that the more they sowed the more desirous of peace they 
would be. This is what the satire says : ' For those, who have been 
plundered of everything, weapons still remain.' Livy, in relating the 
capture of the city of Rome by the Gauls, says : ' The chiefs of the 
Gauls had decided that all the houses should not be burned down, 
in order that what remained of the city might serve them as a pledge 
to break the morale of the foe.' 

2. There is the further consideration that, in the course of 
a war, such moderation gives the appearance of great assurance of 
victory, and that clemency is of itself suited to weaken and to con- 
ciliate the spirit. According to Livy, Hannibal did no damage in the 
territory of Tarentum : ' It appeared ', he says, ' that this course 
was pursued not because of the moderation of the soldiers or their 
general, but [536] in order to conciliate the feelings of the 
Tarentines.' 

For a similar cause Augustus Caesar refrained from pillaging the 
Pannonians. Dio gives the reason : ' He hoped that in this way he 
wouldwin them over to himwithoutcompulsion.' Polybius [Polyaenus] 
says that Timotheus, with that care of which we have already spoken, 
above all else ' sought to win great good-will from the enemy them- 
selves '. Regarding Quintius 2 and those Romans who were under 
his orders, Plutarch, having narrated what we have said above, adds : 
' Not long afterward he received the fruit of this moderation ; for, 
when he arrived in Thessaly, the cities went over to him. Then in 
fact the Greeks who dwelt within Thermopylae also ardently longed 
for Quintius ; and the Achaeans, renouncing the friendship of Philip, 
entered with the Romans into an alliance against him.' 

The state of the Lingones escaped the devastation which they 
had dreaded in the war waged by the general Cerealis, under the 
authority of Domitian, against Civilis the Batavian and his allies ; 
regarding it, Frontinus narrates the following : ' Because the state 
had not lost any of its possessions, owing to the fact that contrary 
to expectation it had not been laid waste, when brought back to its 
allegiance it furnished to him seventy thousand armed men.' 

3. Opposite results have attended the opposite policy. Livy 
gives an example in the case of Hannibal : * His spirit, inclined to 
avarice and cruelty, was prone to despoil what he could not protect. 
This policy was destructive both in its inception and in its result. 
For it alienated the minds not only of those who suffered undeserved 



Xenophon, 
Affairs of 
Greece, IV 
[vi. !$]. 

[Juvenal, 
viii. 124.] 

[V. xlii. 

1-2.] 



XXXIV 

[XXIV. 
xx. 10]. 



XLIX 

[xxxvii]. 

III [x. 5]. 



[Flatni- 
ninus, v = 
P- 37i d, 
cited 

above, III. 
xii. 3. 1.] 



V.iii 
[Stratege- 
mata, IV. 
iii. 14]. 



XXVI 

[xxxviii. 

3-4]. 



1 This is recorded also by Plutarch, Agesilaus [xxii=p. 608 b]. 
* Naturally Titus Quintius Flaminius [Flamininus]. 



75^ 



On the Law of War and Peace 



[Book III 



Aegidius 
Regius, De 
Actibus 
Superna- 
turalibus, 
disp. 3i, 
dub. 7, 
no. 127. 



[Plutarch, 
AUxander, 
xiii=p. 
671 B.] 



wrong, but of others also, since more persons were aflected by the 
example than by the disaster.' 

4. Moreover, that which has been observed by certain theo- 
logians I hold to be true, that it is the duty of the highest authorities 
and commanders, who wish themselves to be regarded as Christians 
both by God and by men, to forbid the violent sack of cities and other 
similar actions. Such actions cannot take place without very serious 
harm to many innocent persons, and often are of little consequence 
for the result of the war ; so that Christian goodness almost always, 
and bare justice very often, shrinks from them. 

Surely the bond which unites Christians is greater than that 
which united the Greeks of old, in whose wars a decree of the Amphi- 
ctyons provided against the blotting out of a Greek city. And the 
ancients relate that Alexander of Macedon repented of nothing that 
he had done more than that he had completely destroyed Thebes. 



[540 



CHAPTER XIII 



MODERATION IN REGARD TO CAPTURED PROPERTY 

I. The property of enemy subjects which has heen captured in war is 
to be held, up to the amount of their debt 

1. The capture of enemy property in a lawful war is not to be 
thought devoid of wrong, or exempt from the obligation of restitu- 
tion. In fact, if you consider what may justly be done, 1 it is not 
permissible to take or to hold property of greater value than the 
equivalent of the enemy's indebtedness, with this exception, that 
over and above that amount one may retain things necessary for 
a guarantee. When the danger is over, however, there should be 
a restoration, either of the things themselves or of their value, accord- 
ing to our discussion in the second chapter of Book II. What would 
be permitted in the case of property of persons at peace is much 
more permissible in regard to the property of enemies. There 
is, then, a certain right of seizure, without a complete right of 
ownership. 

2. Now since a debt may be due to us either because of an in- 
equality of possessions, or as the result of a punishment, 2 the property 
of enemies may be acquired for either reason, but still with a dis- 
tinction. For we have previously said that by a debt of the former 
sort not merely the property of the debtor, but also that of his 
subjects, according to the accepted law of nations, is made liable, as 
though in the case of surety. 

This right of the law of nations, indeed, we hold to be of another 
kind than that which exists in mere impunity or the external power 
of courts of law. For just as he with whom we have completed 
a transaction by our private consent acquires not only a legal but 
also a moral right to our property, so also a right is acquired by a kind 
of common consent, which through a certain force contains in itself 
the consent of individuals, in the sense in which a law is called ' a 
common agreement of the state \ It is the more credible that such 
a basis of right was approved by nations in the kind of affair under 
consideration because the law of nations was introduced not only 
for the sake of avoiding greater evil but also to secure to each one 
his right. 

1 [543] See the decision of Pope Innocent, in Bembo, I. 

2 The Romans ordered Prusias both to make restitution to Attalus and to pay a penalty in addition. 

757 



Victoria, 
On the Law 
of War, 
nos. 55, 
56. 



Cajetan, 
Summula 
Peccato- 
rum, words 
belli dam- 
num ; Co- 
varruvias, 
On Sext, 
V. ult. 4, 
previously 
cited, pt. 
11, no. n ; 
Victoria, 
On the Law 
of War, 
nos. 39 
and 41 ; 
Molina, 
tract. ii, 
disp. 117. 



758 



On the Law of War and Peace 



[Book III 



III. ii [3]. 



Sylvester, 
word bel- 
lum, no. 
10; Vic- 
toria, no. 
51 ; Bar- 
tolus, On 
Digest, 
XLIX.xv. 
28. 

XXVII 
[XXXVII. 
xxxv. 7]. 



II. The property of enemy subjects which has been captured in war is 
not to be held as punishment for the crime of another 

But in the other form of indebtedness, which is penal, I do not 
see that by the agreement of the nations such a right has been extended 
to the property of subjects. Such an obligation imposed upon the 
property of others is hateful, and consequently ought not to be 
extended further than the practice has clearly been. The advantage, 
furthermore, is not the same in the latter as in the former kind of 
indebtedness ; for the former consists in goods, but the latter does 
not, and so its exaction can be omitted without loss. 

This position is not controverted by what we said above about 
the Attic law. For according to its provisions men were held liable 
not in reality because the state could be punished, but rather to 
compel the state to do what it ought to do, that is, to render judge- 
ment against the guilty. This obligation arising from duty is to be 
referred to the former, not to the latter, sort of indebtedness. For 
it is one thing to be under an obligation to punish, and another to 
be subject to or liable to punishment, although the latter condition 
usually results from failure in respect to the former, but in such a way 
that one is distinctly the cause and the other the effect. Therefore 
the property of the subjects of enemies cannot be acquired on the 
ground of punishment, but only that of those who have themselves 
done wrong ; among these are included also the magistrates who fail 
to punish the crimes. 

III. Here zve must understand as debt also indebtedness which arises 
in time of war. Examples 

Moreover the goods of subjects may both be seized and acquired, 
not only [542] for the exaction of the original debt which gave 
rise to the war, but also for the exaction of indebtedness which 
develops subsequently ; this is according to what we said at the 
beginning of this book. In such a sense we must take what certain 
theologians write, that captures in war are not to be set ofl against 
the principal debt ; for it is to be understood that such captures 
are an offset up to the point where, according to a sound judgement, 
satisfaction has been obtained for the loss occasioned by the war 
itself. 

Thus in the dispute with Antiochus the Romans, as Livy relates, 
held it to be just that the king should pay all the expense which had 
been incurred for the war, 1 since it was through fault of his that the 



1 This is mentioned by Polybius, Selections on Embassies, xxiii. And the Asiatics were condemned 
in the same way by Sulla, as Appian records in his Mithridatic War [ix. 61 ff.]. The King of Poland 



Chap. XIII] Moderation in regard to Captured Property 759 



war had arisen. In Justin is the phrase, ' ready, according to a just 
law, to assume the expenses of the war.' In Thucydides the Samnians 
are condemned ' to pay the expenses of the war '. And so, frequently, 
in other instances. However, what is justly imposed upon the con- 
quered may also be justly exacted by a war. 

IV. In this matter it is an obligation of humaneness not to make the 
fullest use of one^s right 

1. But we must keep in mind that which we have recalled 
elsewhere also, that the rules of love are broader than the rules of 
law. He who is rich will be guilty of heartlessness if, in order that 
he himself may exact the last penny, he deprives a needy debtor of 
all his small possessions ; and even much more guilty if the debtor 
has incurred the debt by his goodness for instance, if he has gone 
surety for a friend and has used none of the money for his own 
advantage, ' for ', as Quintilian the Father says, ' the peril of a bonds- 
man is worthy of commiseration \ x Nevertheless so hard a creditor 
does nothing contrary to his right according to a strict interpretation. 

2. Therefore humanity requires 2 that we leave to them that 
do not share in the guilt of the war, and that have incurred no obliga- 
tion in any other way than as sureties, those things which we can 
dispense with more easily than they, particularly if it is quite clear 
that they will not recover from their own state what they have lost 
in this way. Here applies what Cyrus said to his soldiers after the 
capture of Babylon : ' What you have, you will hold not unjustly ; 
but if you do not take away anything from the enemy that will be 
an evidence of your humanity.' 

3. This also is to be observed. The right over the goods of 
innocent subjects has been introduced as a subsidiary means ; and as 
long as there is hope that we can obtain what is ours with sufficient 
ease from the original debtors, or from those who by not rendering 
justice voluntarily make themselves debtors, to come to those who 
are free from blame, even though it is granted that this is not in 
conflict with our strict right, nevertheless is to depart from the rule 
of human conduct. 

4. Instances of such humanity are found everywhere in history, 

claimed this custom in his favour, according to De Thou, LXXIII [LXXIII. ix], for the year 1581. So 
in Homer, Jliad, III [III. 286], the word rirfv is interpreted by the Scholiast as ' an estimation of the 
war ; namely half of the property which was in the city.' 

1 He adds that a creditor can honourably approach a bondsman only in case he cannot recover 
f rom the debtor. The ' honourably ' is well said ; f or it seems that there was a certain ' stigma ' attached 
to calling on bondsmen, as Cicero says, Lelters to Atticus, XVI. xv. 

2 Ptolemy returned to Demetrius, the son of Antigonus, his tent and other things which served 
his personal use, and also the money he had captured, saying that they were not fighting with one 
another for objects of all sorts, but for empire and glory. The story is told by Plutarch, Demetrius 
[v=p. 891 a]. See also the act of Sancho, king of the Basques, in Mariana, XI. xvi. 



XXXIII 

[i. 5]. 
[I. cxvii.] 



[Declama- 

tions, 

cclxxiii.] 



[Xeno- 
phon, 
Training 
of Cyrus, 
VII. v. 
73-] 

Aegidius 
Regius, 
De A ctibus 
Superna- 
turalibus, 
disp. 31, 
dub. 7, 
no. 117. 



760 



On the Law of War and Peace 



[Book III 



Dig. XLI. 
i. 16. 
Dig. XLI 
i.16; 
Dig. VI. 
i. 15- 2; 
Victoria, 
On the Law 
ofWar, 
no. 40 ; 
Sylvester, 
word bel- 
lum, pt. I, 

s *. \ 

[Liw 
xv. 5.] 
Arrian, 
\Anabasis,] 

III >vii]. 



particularly in the history of Rome. Examples are when lands have 
been ceded to the conquered enemy on the condition that they should 
pass to the state, that is, that they should fall to the conquered 
state ; or when a part of the land was left to the ancient possessor * 
as a mark of respect. Thus Livy records that the inhabitants of 
Veii were penalized by Romulus with the loss of part of their land. 
Similarly Alexander the Macedonian granted to the Uxii under 
tribute the lands which they had possessed. 

So you may often read that surrendered cities were not sacked ; 
and we have said above that it is praiseworthy, and in accordance 
with the pious precepts of the canons, to spare not only the persons, 
but also the property, of the tillers of the soil, subject at any rate 
to tribute. Upon condition of a similar tribute, immunity from war 
is usually granted to merchandise also. 



1 Appian, Civil Wars, II [II. xix. 140], says: 'Not even from conquered enemies did the ancient 
Romans take all their territory, but they divided it with them.' The historians inform us that the 
Vandals in Africa, and the Goths in Italy, did likewise. 



CHAPTER XIV 



MODERATION IN REGARD TO PRISONERS OF WAR 



I. To what extent, in accordance with moral justice, it is permissible to 
take men captive 

1. In those places where custom sanctions the captivity and 
slavery of men, this ought to be limited primarily, if we have regard 
to moral justice, in the same way as in the case of property ; with 
the result that, in fact, such acquisition may be permitted so far as 
the amount of either an original or derivative debt allows, unless 
perhaps on the part of the men themselves there is some special 
crime which equity would suffer to be punished with loss of liberty. 
To this degree, then, and no further, he who wages a lawful war 
has a right over the captured subjects of the enemy, and this right 
he may legitimately transfer to others. 

2. Furthermore in this case also it will be the task of equity 
and goodness to employ those [544] distinctions which were 
noted above, when we discussed the question of killing enemies. 
Demosthenes, in his letter For the Children of Lycurgus, praises Philip 
of Macedon for not having enslaved all who were among his enemies. 1 
' For ', said Demosthenes, ' he did not consider the same punishment 
for all either fair or right, but, examining the case in the light of 
what each had deserved, he acted in such matters as a judge.' 

II. What is permissible against a slave according to the moral power of 
justice 

1. Now in the first place it must here be noted that that right, 
which originates in a kind of surety on behalf of the state, can nowhere 
extend so widely as the right which arises from a crime against those 
who become slaves as a penalty. Hence a certain Spartan said that 
he was a prisoner, not a slave 2 ; for, if we regard the question properly, 
this general right against prisoners captured in a lawful war is equiva- 

1 His son Alexander, after capturing Thebes, exempted from slavery both the priests and those 
who had not assented to the decrees published against him ; so Plutarch records in his Alexander 
[xi = p. 670 e]. 

2 Philo [That Every Virtuous Man Is Free, vi] says : ' For both fathers have often paid a ransom for 
their sons, and sons for their fathers, who had either been violently carried off by brigands or captured 
according to the custom of war, but whom the laws of nature, more valid than those which are made 
upon earth, declare free.' In fact, as Helen said in the play of Theodectes [in Aristotle, Pohtics, I. vi] : 

Who would dare to call me slave, 
Me, child of the gods by either line ? 

761 



Victoria, 
On the Law 
of War, 
no. 41 ; 
Decio 
[Lessius], 
II. v, dub. 
4; Covar- 
ruvias, On 
Sext, V. 
ult. 4, 
pt. 11, 

"; 

Molina, 
disp. 120 
and 121 ; 
Valentia, 
Disp., iii, 
qu. xvi. 

[Letiers, 
iii. 12.] 



[Plutarch, 
Laconic 
Apothegms, 
xl=p. 234 
Cj 



762 



On the Law of War and Peace 



[Book III 



Plataic 
Otation 

[xviii = 

300 A]. 

Seneca, 
On Bem- 
fits, III. 
xxii. 



On CU- 
tncncy, I. 

xviii. 



[Stobaeus, 
Ixii. 28.] 



Lettcrs, 
xlvii [ij. 

[Saturn- 
alia, I. xi.] 

Colossians, 
iv. 1. 

EpistUs 
[Ephe- 
sians], 
vi. 9. 

VII. xiv. 



Theln- 
structor, 
end [III. 

[Son of 
Sirach, 

XXXi :. 



lent to that right which masters have over those who, under constraint 
of poverty, have sold themselves into slavery ; only the misfortune 
is even more to be pitied of those who have met this fate not by 
their own particular act, but through fault of their rulers. c To be 
captured by the law of war is a most bitter fate,' as Isocrates bore 
witness. 

2. This servitude, then, is a perpetual obligation of services 
for maintenance that is likewise perpetual. The definition of 
Chrysippus well suits this class of slaves : *A slave is a perpetual 
mercenary.' The Hebraic Law expressly compares to a mercenary 
the man who has sold himself under constraint of want (Deuteronomy, 
xv. 18, 40, 53), and in case of his redemption the law wishes his 
services to be credited to him just as crops gathered from land that 
has been sold would be credited to the former owner (Deuteronomy, 
xviii. 50). 

3. Therefore that which may be done to a slave with impunity 
according to the law of nations differs widely from that which 
natural reason permits to be done. From Seneca we previously 
quoted this : ' Although against a slave all things are permissible, 
there are some things which the common law of living things forbids 
to be done against a human being.' This saying of Philemon is to 
the same effect : 

He, Master, who is born a man, though he may serve 
In slavery, still ceases not to be a human being. 

Elsewhere Seneca says also : ' They are slaves, nay rather men ; 
they are slaves, nay rather comrades ; they are slaves, nay, humble 
friends ; they are slaves, nay rather fellow slaves.' What you may 
read in Macrobius has clearly the same sense as the saying of the 
Apostle Paul : * Masters, render unto your servants that which is 
just and equal, knowing that ye also have a Master in heaven.' In 
another place the apostle wishes masters not to deal threateningly 
with their slaves, for the reason which we have just stated, that they 
also have a Master in heaven, who pays no regard to such difTerences 
of status. In the Constitutions, which are usually ascribed to Clement 
of Rome, we read : 'Beware of commanding a slave or a handmaid in 
bitterness of heart.' l 

Clement of Alexandria wishes us to treat our slaves as second 
selves, since they are human beings no less than we are. He is follow- 
ing the saying of the wise Jew : ' If you have a slave, treat him as 
a brother, for he is such as you are.' 

1 80 also we read in the EpistU of Barnabas [chap. xix] : [549] ' Command not harshly thy 
s,ave ' Imaid, who hojx: in Christ, lest thereby thou show that thou dost not fear the Lord 

who is cominon tO thee and to them.' 



Chap. XIV] Moderation in regard to Prisoners of War 



763 



III. It is not permissible to kill an innocent prisoner 

Therefore the right, which is called the right of life and death 
over the slave, causes the master to have domestic jurisdiction, which, 
indeed, is to be exercised with the same conscientiousness as public 
jurisdiction. This is what Seneca meant when [545] he said : 
' In the case of a slave you must consider, not how much he can suffer 
with impunity, but how much is permitted to you by the nature of 
justice and goodness, which bids you to spare even prisoners of war 
and those who have been bought for a price.' 

Elsewhere Seneca says : ' What does it matter by what power 
any one is held, if he is held by a power that is absolute ? ' In this 
passage he compares a subject to a slave, and says that on different 
grounds it is permissible to treat them alike ; a statement that is 
certainly most true in respect to the right of taking away their life, 
and whatever approximates this. 4 Our ancestors ', says the same 
Seneca, 1 ' considered our household to be a diminutive state ' ; and 
Pliny writes : l For slaves the household is a sort of republic, and, as 
it were, a state.' Cato the Censor, in Plutarch's account, did not 
inflict punishment upon a slave, who appeared to have committed 
a capital crime, until after he had been condemned, and that by the 
judgement of his fellow slaves. With this should be compared the 
words in Job, xxxi. 13, and following. 

IV. It is not permissible to punish zvith severity 

But in regard to minor punishments also, as the beating of 
slaves, we must apply fairness, and further, clemency. ' Thou shalt 
not oppress him, thou shalt not rule him harshly,' 2 says the divine 
law in regard to the Jewish slave a rule which should now be extended 
to all slaves, through extension of the force of relationship (Deu- 
teronomy, xv. 17, 45, 53). On this passage Philo 3 comments thus : 
Slaves in respect to fortune, indeed, are inferior, but by nature they are equal to 

1 Seneca, Letters, xlvii [xlvii. 14]. 

2 See Moses de Kotzi, Precepts Bidding, 147, 175 and 178, and the Collatio Legum Mosis et Rotna- 
norum, tit. iii. Priscus, in the Selections on Embassies [Fragmenta Historicorum Graecorum, IV, p. 88], 
where he puts the Romans above the barbarians, says : 

' The Romans treat their slaves in a much better fashion, and act toward them as fathers or 
teachers ; for to turn them from the things which, according to their customs, are forbidden, they 
punish them when they do wrong, like their own sons. And they have not the right to kill them, 
as do the Scythians. Moreover there are very many kinds of liberty which the masters bestow 
upon them, not only when living, but also at the moment of their death ; whatever disposition they 
make of their property when dying has the force of law.' 
Add the Law of the Visigoths, VI. i. 12. 
8 On Special Laws, II [III. xxxv]. 

Cyprian writes To Demetrianus [chap. viii] : ' Unless you are served according to your capnce, 
unless you are obeyed in compliance with your pleasure, imperiously, and with excessive demands for 
subservience, you scourge, you beat, you afflict with hunger, thirst, nakedness, f requently with fetters 
and imprisonment, and, wretch that you are, you do not recognize that God is your Lord, since you 
yourself so exercise your authority over man.' 



On Cle- 
mency, I. 
xviii. 



On Bene- 
fits, III. 
xviii. 



Letters, 
xliii 
[xlvii. 14]. 

[Lettets, 
VIII. xvi .] 
[Plutarch, 
Cato the 
Elder, 
xxi=p. 
349 a.] 



7 6 4 



On the Law of War and Peace 



[Book III 



[On Clem- 
ency, I. 
xvi. 4.] 



Exodus, 
xxi. 26, 27. 



their masters ; for in the divine law the rule of justice is not that which accords with for- 
tune, but that which accords with nature. Hence masters ought not to use their power over 
slaves wantonly, nor in consequence of the possession of such power to indulge in pride, 
insolence, and savage wrath. For these are manifestations of a spirit that is not calm, 
but is ill-controlled and rages against those subject to it with a sort of tyrannical despotism. 

* Is it in fact right ', asks Seneca, ' that orders should be given 
to a man with greater severity and harshness than to dumb animals ? 
v a groom who is a skilful tamer does not frighten a horse with 
repeated blows ; for the horse will become timid and balky unless 
[i. xvii. 1.] you stroke him with a caressing touch.' And soon after : ' What is 
more foolish than to blush to vent one's anger upon yoke-animals 
and dogs, while the worst condition is that of man ? ' 

\\ hence it comes that by the Hebraic Iaw liberty was owed to 
a male or female slave not only for the loss of an eye, but also for that 
of a tooth, 1 wrongfully injured, of course. 

V. // is not permissible to impose upon slaves tasks that are excessively 
severe 

1. But services also are to be exacted with moderation 2 and 
the health of slaves is to receive humane consideration. Besides 
other things the Hebraic law aimed to accomplish this result through 
the institution of the Sabbath, presumably in order that slaves might 
have some time to rest from their labours. There is also a letter 
of Gaius Pliny to Paulinus, which begins thus : * I see how leniently 
you handle your slaves, therefore I will the more frankly admit to 
you with what indulgence I treat mine. I have always in mind that 
saying of Homer, " But the stepfather was as kind as a father," and 
this is our term for the father of the household (paterfamilias).'' 

2. In connexion with the same word Seneca also notices the 
humanity of the ancients : ' Do you not even see this, how our 
ancestors protected masters from all ill-will, and slaves from all 
insolence? They called the master the father of the household 
(paterfamilias), the slaves members of the household (Jamiliares) '. 3 
In describing a most excellent king, Dio of Prusa says : ' So far is 
he from usurping the title of master over free men, that he refrains 
from the use of it even in relation to slaves.' 



Exodus, 
xx. 10; 

xxiii. 12 ; 
Deut., x. 
14 [xvi. 
14). 

[Letters, 
V. xix.] 

[Odyssey, 
II. 47 and 

234-] 

Letters, 
xlvii [14]. 



[Orations, 
i=p. 5] 



1 Philo, in the passage cited [On Special Laws, III. xxxv], says : ' Thus he will pay a twofold penalty 
for his act, in losing both the services and the value of the slave ; in addition to these there is a third 
penalty, more severe than these two, that the master is forced to benefit in the highest degree one 
whom he hates, and whom he had hoped that hc could always abuse. But the other will have a twofold 
solace for the wrong which he has suffered, not only in obtaining his freedom, but also in being freed 
from so fierce and savage a master.' 

See chap. xiv, in the letter of the bishops to King Louis, which is included in the Capitulary of 
Mon. Gertn. Hisl., Leges, II, vol. 11. p. 437]. Seneca, Letlers, xlvii [xlvii. 5], says : 
tmse them, not as men, but as though they were o\< n.' B o w CV CT, with re^ard to the leniency 
of the Athenians towards slaves see [Pseudo-]Xenophon, On the Constitulion of Athcns [I. ix ff.]. 
picurus called them f riends ; Seneca, Letters, cvii [cvii. 1]. 



Chap.xiv] Moderation in regard to Prisoners of War 765 

In Homer Ulysses l says that the slaves whom he found faithful 
will have in his house the same place as if they were brothers of 
Telemachus, his own son. Tertullian declares : < The name of piety 
is more gracious than that of power 2 ; the heads of households [546] 
are called fathers rather than masters.' Jerome or Paulinus writes to 
Celantia : ' So rule and order your household that you may wish to 
appear the mother rather than the mistress of your slaves, and from 
these exact respect by kindness rather than by severity.' 

Augustine says : 

The peace of the household was in olden times so directed by just fathers that with 
regard to these temporal goods they distinguished the lot of sons from the status of 
slaves, but in the worship of God they consulted with equal care the interests of all 
members of their household. This is in accordance with the prescription of the order 
of nature, so that from this source the name ' father of the household ' arose and became 
so widely current that even those who rule unjustly are glad to be called by this name. 
However, those who are true fathers of the household aid all in their household just 
as sons to worship and propitiate God. 

3. In commenting on the verse of Virgil, ' Now, boys, close up 
the rivulets ', Servius observed a similar instance of piety in the use 
of the word ' boys ' (pueri), which men applied to slaves. In the same 
spirit the Heracleots called their Mariandynian slaves ' gift-bearers 



(Sw pocfyopoL) ', 3 thus ' sparing the bitterness of the name ', as the 
ancient interpreter Callistratus remarked in a note on Aristophanes. 
Tacitus praises the Germans, because their slaves were treated as 
tenant farmers. Theano says in a letter : ' This is the just way to 
use slaves ; not to let them be worn out with toil, nor be too weak 
to endure labour because of poverty.' 



Odvssey, 
V [XXI. 

215 ff.]- 

[Apology, 

xxxiv.] 

[Jerome, 

Letters, 

cxlviii. 

25.] 



City of 
God. XIX. 



[On 

Eclogues, 
VI. 14.] 



[Germany, 

XXV.] 

[Letters, 
iii. pr.l 



VI. Under what circumstances the savings ofa slave belong to the master, 
and under what circumstances to the slave 

1. As we have said, maintenance is due to the slave 4 for his 
work. Cicero says : ' Those make wise suggestions who bid us use 
slaves just as men who serve for hire, declaring that work is to be 



On Duties, 
I [xiii. 41]. 



1 Whose fatherly kindness toward himself Eumaeus proclaims, Odyssey, XIV [XIV. 138 ff.]. 

2 This is also observed by Cyprian, Testimonies, III [III. lxxii], To Quirinus : ' Masters should be 
more gentle to their slaves, when they have embraced the faith ' ; and he proves this by the words 
of the Apostle Paul to the Ephesians [vi. 9]. Lactantius, V. xv, writes : ' There is no reason why we 
mutually apply to one another the name of brothers other than this, that we believe that we are equals. 
For if we measure all human beings not according to the body, but according to the spirit, although their 
bodily condition may be different, yet [550] they are not slaves to us ; but we both consider them, and 
call them brothers according to the spirit, fellow slaves in religion.' 

Augustine, On the Cusloms of the Catholic Church, X. xxx [I. xxx. 63], says : ' You teach slaves to 
cleave to their masters, not so much from the necessity imposed by their condition, as from delight in 
their duty. You make masters easily appeased by their slaves, from regard to the supreme God, who 
is indeed their common master, and more prone to advise than to coerce.' 

Add also Isidore of Pelusium, Letters, I. cccclxxi. Refer to what we have just quoted from Priscus 
[p. 763, n. 2]. 

3 Athenaeus, VI. xviii [VI. Ixxxiv]. 

4 Son of Sirach [Ecclesiasticus], xxxiii. 25, says : ' Bread, discipline and toil, are for the slave.' 



7 66 



On the Law of War and Peace 



[Book III 



Economics, 
I. v. 
[On 

Farming, 
V. ii.] 
On Bene- 
fits, III 
[xxi. 2]. 
[Oh 

Terence's] 
Phormio, 

i. i u 

Dig. 
i. 40. 
Thucv- 
dides, VII 
[Ixxx\ 
Diodorus, 
XIII [xix]. 
[On 

Benefits, 
III. xix.] 



Institutes, 

IV. vii. 

Dig. XV. 
i. 5- 1. 



required of them, but that they are to be furnished with what they 
deserve.' Says Aristotle : ' The slave's pay is his maintenance.' 
And Cato : * Let him see to it that his slaves fare well, that they 
are neither cold nor hungry.' 

* There are some things ', says Seneca, 1 * which a master should 
furnish to his slave ; as rations and clothing.' The rations included 
four bushels of grain monthly, which, according to Donatus, were 
supplied to slaves. Marcianus the jurist says that there are some things 
which it is necessary for the master to supply to a slave, as tunics and 
the like. The cruelty of the Sicilians, 2 who killed the Athenian 
prisoners by starvation, is condemned by historians. 

2. Seneca, moreover, in the passage cited proves that in relation 
to certain matters the slave is free, and that he has also the means of 
conferring a benefit, if he does something which exceeds the measure 
of his duty as a slave, something which is tendered not at a command, 
but voluntarily, where there is a transition from the obligation of 
service to the affection of a friend ; this Seneca explains at length. 
It is in harmony with these ideas that if a slave, as in Terence, 3 in 
his leisure hours, has saved something by cheating his own soul, or 
by his industry, this is in some way his own. 

Theophilus does not do badly to define the slave's savings 
(peculium) as ' a natural patrimony ', 4 as you might define * the 
union of slaves (contubernium) ' as ' a natural marriage \ Ulpian 
also calls the slave's savings a diminutive patrimony. It does not 
matter that the master can at his discretion take away or lessen the 
patrimony, for if he does this without cause he will not do what is 
just. By cause, however, I understand not only punishment, but 
also the master's necessity ; for the advantage of the slave is sub- 
ordinate to the advantage of his master, even more than the interests 
of citizens are subordinate to that of their state. On this point 

1 The same author, On Tranquillity [viii. 8], writes : ' The slaves ask for clothing and food.' 
In Procopius, Gothic War, III [III. xvii], the Romans say to Bessas : ' At least give us food, since we 
are your captives, I shall not say sufficient food, such as our need demands, but enough to ward off death.' 

Chrysostom comments, On Ephesians, v. 21 [Homily XIX, v] : ' When he performs his bodily 
services, you indeed feed him, and see to it that, in addition to his food, he has clothing and shoes, and 
this, too, is a sort of servitude ; for unless you also perform this service of yours, he will not render his, 
but will be free, and no law will compel him to render his services, if he is not nourished.' 

* Also that of Isaac Angelus to the Sicilian prisoners, as is recorded by Nicetas, Book I [Isaac 
Angelus, I. iii], who quotes also the letter of the king of Sicily to the Greek empcror on this subject. 

* Phormio, I.i [I. i. 44]. 

* Eumaeus in the Odyssey, XIV [XIV. 63 f.], says : 

Such things as a generous master gives to a bondsman, 
The ties of wedlock, land, and a habitation. 

Ulysses himself, Odyssey, XXI [XXI. 214 f.], says to Eumaeus and Philaetius: 
To each of you shall I give wives and possessions, 
And houses near to my own. 

Varro [On Farming, I. xvii. 7] says of slaves : ' They are rendered more zealous in their work by more 
generous treatment, by greater hberality in respect to food or clothing, or by the remission of a task, 
or by the permission to pasture on the estate some cattle of their own.' 



Chap.xiv] Moderation in regard to Prisoners of War 767 

Seneca l appositely remarks : ' It is not true that the slave has nothing 
merely because he will have nothing if his master is unwilling that 
he should have anything.' 

3. Hence it is that a master does not seek to recover anything 
which was owed to a slave during slavery, and which was paid to the 
slave after emancipation. The reason, as Tryphoninus says, is that 
the ground for indebtedness or non-indebtedness is seen naturally in 
the claim of restitution ; the master may naturally be indebted to 
his slave. And so we read that, just as clients [547] have made 
contributions for the use of patrons, and subjects for the use of 
kings, so slaves have made contributions for the use of their masters, 
as on the occasion of giving a dowry to a daughter, or ransoming 
a captive son, or some similar occurrence. 

Pliny, as he himself records in his letters, even allowed his slaves 
to make wills of a sort, that is to divide, donate, and leave their 
belongings within the household. We read that among some peoples 
slaves were allowed an even fuller right of acquiring property, just 
as we have elsewhere said that there are several degrees of slavery. 

4. Among many peoples the laws have reduced even the 
external right of masters to this moral justice, which we are explain- 
ing. For among the Greeks slaves who had been too harshly treated 
were permitted ' to demand their sale ', and at Rome to take refuge 
at statues, or to seek the aid of the magistrates against cruelty or 
starvation or intolerable wrong. Furthermore it will happen, not 
from a strict interpretation of law, but from humanity and kindness, 
that at times a slave will be given his freedom, which is due to him 
on the ground of long or very great services. 

5. After slavery was introduced by the law of nations, there 
followed the benefit of emancipation, says Ulpian. Let us take as 
an example the lines of Terence : 

From a slave I made you my freedman, 
Because like a free man you served. 2 

Salvianus says that it was a frequent custom for slaves to be given their 
liberty, even when their service had not been of the best, at any rate 
if it had not been wicked ; he adds, l and they are not forbidden to 
take from their masters' house those things which they have acquired 
when in a servile condition '. Many instances of this sort of kindness 
appear in the martyrologies. 



On Bene- 
fits, VII. 
iv. 



Dig. XII. 
vi. 64. 



Dionysius, 
II [x]. 



Letters, 
VIII. xvi. 



II. iii [II. 
v. 27 ff.]. 



Instilutes, 
I. viii. 2. 



Dig. I. i. 
4- 

[Andria, 
l. i. 10 f.] 



[Against 
Avarice,] 
III [vii]. 



1 In the same passage of the same author is this : * Is there any doubt that the slave, along with 
his savings, belongs to his master ? But yet he can give a gift to his master.' 

2 Thus the manuscripts, correctly. Varro [Servius, On the Aeneid, VIII. 564] relates that in the 
grove of Feronia it was customary to say to slaves : ' Let the well-deserving slaves be seated. ^ Let them 
arise free.' In certain places it was the custom to set slaves free when they had acquired eighc times 
their purchase price. 

1569.27 3 F 



768 



On the Law of War and Peace 



[Book III 



Deut., xv. 
13- 



[Cato the 
Elder, v 
= P-338E.] 



Sylvester, 
word ser- 
vitus, 3 ; 
Fortunius, 
On Dig., L 
i.4J Aegi- 
dius Re- 
gius, De 
Actibus 
Superna- 
turalibus, 
disp. 31, 
dub. 7, 
no. 119. 



In this respect also we must praise the lenity of the Hebraic 
law, which ordained that the Jewish slave should be completely 
emancipated after the lapse of a fixed time, and not without gifts. 1 
The prophets bitterly complain of the disregard of this law. Plutarch 
censures Cato the Elder for selling slaves who were worn out from 
old age, unmindful of that common nature in which all men share. 

VII. Whether it is permissible for slaves to attempt to escape 

The question here arises, whether it is right for a person who 
has been made a prisoner in a just war to attempt to escape ; we are 
not dealing with him who has deserved this penalty by his own 
crime, but with him who has come into such a condition by a public 
act. The sounder view is that it is not right, because, as we have 
said, by the common consent of nations such a captive owes his 
services on behalf of his state. 

This view nevertheless is not to be understood as valid in a case 
where intolerable cruelty imposes the necessity of escape upon the 
captive. On this subject one may consult the response of Gregory 
of Neocaesarea, xvi. 



II. v [29]. 

Lessius, 
II. v, 

dub. 5. 



Deut., xv. 

13 [xx. 14]. 



VIII. Whether the children of slaves are bound to the master^ and to 
what extent 

1. In another connexion we raised the question, whether and 
to what extent the offspring of slaves are bound to the master by 
moral justice. This question should not be passed over here, 
because it particularly concerns prisoners of war. If the parents 
had merited death by their own crimes, then for the preservation of 
their lives the ofTspring which was expected of them could be bound 
to slavery, because otherwise these would not be born. As we have 
said elsewhere, parents may in fact sell their children into slavery if 
otherwise they would face starvation. Such is the right which God 
granted to the Jews over the descendants of the Canaanites. 

2. However, children that were already born, no less than their 
parents, as part of the state could have been made liable for a debt 
of the state ; but with regard to those who have not yet been born 
this reason does not seem sufficient, and another appears to be required. 
Either the obligation in question may arise from the express consent 
of the parents, along with the necessity of supporting the children, 
and then it may exist without end ; or it may arise from the mere 
furnishing of sustenance, in which case it exists only up to the time 
[548] when their services shall have cancelled all that has been 
expended for them. If any further right over the children is given 



1 Custom interpreted this as requiring a gift of not less than thirty shekels; see Precepls 
Bidding, 84. 



Chap.XlV] Moderation in regard to Prisoners of War 769 

to their master, apparently it arises from the civil law, which to 
masters is more generous than just. 

IX. What is to be done in countries where the enslavement of prisoners 
of war is not customary 

1. Among those peoples who do not avail themselves of the 
right of slavery which arises from war, the best course will be to 
exchange prisoners ; the next best, to release them at a price that is 
not unfair. What that price is cannot be set forth in exact terms ; 
but humanity teaches that it should not be raised to the point where 
its payment would place the prisoner in want of the necessities of 
life. Such indulgence is in fact granted by the laws of certain coun- 
tries to many who have fallen into debt by their own acts. 

In some places the price put upon captives is fixed by agreements 
or by custom ; as the sum of a mina among the Greeks of antiquity, 1 
and at present among soldiers at a month's pay. Plutarch relates 
that formerly wars between the Corinthians and Megarians were 
waged ' humanely and as became peoples of the same race'. If any 
one were taken prisoner, he was treated by his captor as a guest and, 
upon his promise to pay his ransom, dismissed to his home ; and from 
this arose the name ' war-guests (Sopv^evot) '. 

2. The saying of Pyrrhus, which is praised by Cicero, reveals 
a nobler spirit : 

I ask for myself not gold, 2 nor shall you pay me a ransom ;[...] 
With steel, not with gold, on each side nght we for life. [. . .] 
To them whose valour the fortune of war has spared, 
Their liberty I am resolved to grant. 

There is no doubt that Pyrrhus believed that he was waging a just 
war ; yet he thought that he ought to spare the liberty of those 
whom worthy reasons had led into war. 

Xenophon lauds a similar act of Cyrus ; Polybius, the course 
taken by Philip of Macedon after his victory at Chaeronea ; Curtius, 
the conduct of Alexander in relation to the Scythians ; Plutarch, 
that of King Ptolemy and Demetrius, who rivalled each other fully 
as much in their kindness toward prisoners as in military operations. 
Dromichaetes, king of the Getae, 3 made Lysimachus, who had been 
taken prisoner, his guest, and by causing him to witness at the same 
time both the poverty and the civility of the Getae he induced 
Lysimachus to prefer to have the friendship of such people rather 
than their enmity. 

1 [55 J ] In the war between the French and Spaniards in Italy, a cavalryman was ransomed f or a 
quarter of a year's pay. But this did not include leaders of detachments or higher officers, nor those 
who fell into the enemy's power in a pitched battie or in the storming of a city ; Mariana, XXVII. xviii. 

2 Menander Protector [frag. 60, p. 115, edit. Dindorf] praises the like generosity of the Christian 
Emperor Tiberius toward the Persians ; Mariana, that of Sisebut [VI. iii], and also of Sancho, king 
of Castile, Book XI [XI. v]. 

This is also recorded by Diodorus Siculus, in the Excerpta Peiresciana [pp. 257 and 258]. 

3 F 2 



[Reading 
largiente 
f or largi- 
entibus.] 



Greek 
Questions 
[xvii = p. 
295 b]. 



[On 

Duties, 
I. xii. 38.] 



Training 
of Cyrus, 
II [III. i. 
28 ff.]. 
[Polybius, 
V.x.] 
[Curtius, 
VII. ix. 
18.] 

[Plutarch,] 
Demetrius 
[v=p. 
891 4], 

Strabo, 
VII [iii. 8]. 



CHAPTER XV 



Victoria, 
OntheLaw 
of War, 
nos. 38 
and 59. 



[Letlers, 
II. iv = 
p. 409.] 



Jugurthine 
War [Con- 
spiracy of 
Catiline, 
xii. 4]. 
[On Pub. 
Ad.,Lvi.2.] 
Republic 
[Politics], 
VII. xiv 
and xv ; 
Nic. Eth., 

On Duties, 
I [xxiii.8o]. 
[I. xi. 35.] 
Thomas, 

m.40, 
arti,ad3; 
Wilhelmus 
Matthaei, 
De Bello, 
} rcquis., 
qu. 7. 
[Justin, 
I. i. 3] 



NODERATION IN THE ACQUISITION OF SOVEREIGNTY 

I. To what extent moral justice permits sovereignty to be acquired 

The equity which is required, or the humanity which is praised, 
in respect to individuals, is so much more required and praised in 
respect to peoples or parts of peoples in the degree that wrong or 
kindness toward a large number of persons becomes more notable. 
As other things may be acquired in a lawful war, so there may be 
acquired both the right of him who rules over a people and the 
right which the people itself has in the sovereign power ; only in so 
far, however, as is permitted by the measure of the penalty which 
arises from a crime, or of some other form of debt. 

To these reasons should be added the avoidance of extreme 
danger. But this reason is very often confused with the others, 
although both in establishing peace and in making use of victory it 
deserves particular attention for its own sake. It is possible to forgo 
other things from compassion ; but, in case of public danger, a sense 
of security which exceeds the proper limit is the reverse of com- 
passion. Isocrates wrote to Philip : ' The barbarians must be sub- 
jugated to a point which will enable you to make your country 
perfectly secure.' 

II. It is fraiseworthy to abstain from the exercise of the right to acquire 
sovereignty over the vanquished 

1. Sallust says of the ancient Romans : ' Our ancestors, being 
most scrupulous persons, used to deprive the vanquished of nothing 
save the power to do harm.' This is a view which could worthily 
have been uttered by a Christian ; and with it accords another 
sentence of the same writer : ' Wise men wage war to secure peace, 
and endure toil in the hope of ease.' More than once Aristotle said : 
' War was originated for the sake of peace, and business for the sake 
of leisure.' Cicero supports the same idea, and his is this exalted 
maxim : ' Let war be so undertaken that nothing else than peace 
may seem to be sought after.' From the same author comes this 
similar saying : ' So wars are to be undertaken for this reason, that 
men may live in peace without being wronged.' 

2. These views differ in no respect from those which theologians 
of the true faith set forth to the effect that the end of war is the 
removal of the things which disturb peace. Before the time of Ninus, 
as we began to say elsewhere, following Trogus, it was the custom 

77 



Chap. XV] Moderation in Acquisition of Sovereignty 



771 



to protect rather than to advance x the frontiers of one's empire ; 
each one's realm was limited to his own country ; kings sought not 
empire for themselves but [552] glory for their peoples, and, 
being content with victory, they abstained from acquiring dominion. 
So far as he can, Augustine recalls us to this condition : ' Let 
them see to it, nevertheless, that it may not concern good men to 
delight in the extent of their dominion.' 2 He adds also this : ' It 
is a greater good fortune to live in harmony with a good neighbour 
than to subdue a bad neighbour who wages war on us.' Furthermore, 
the prophet Amos severely reproves in the Ammonites this zeal for 
extending their borders by armed force. 



City of 
God, IV. 
xv. 



Amos, i. 
13- 



III. Either by mingling them with the conquerors 

To this ideal of old-time innocence the closest approach is in 
the wise moderation of the ancient Romans. ' What would our 
empire be to-day ', says Seneca, ' had not salutary foresight mingled 
the vanquished with the conquerors ? ' ' Our founder Romulus ', 
says Claudius in Tacitus, ' displayed so much wisdom that on the 
same day he had many peoples as enemies, and then as citizens '. 
He adds that the cause of the downfall of the Lacedaemonians and 
Athenians was nothing else than the exclusion, as foreigners, of those 
whom they had conquered. Livy says that the Roman power grew 
through the admission of enemies into the state. Examples are to 
be found in the history of the Sabines, Albans, Latins, and other 
Italian peoples ; until, at last, 

Caesar in his triumph led the Gauls, and into the Senate, too. 

Cerialis, in his speech to the Gauls, which is found in Tacitus, 
declares : ' You yourselves often command our legions ; you your- 
selves govern these and other provinces ; there is nothing shut off 
from you or closed to you.' And shortly after : ' Then love, then 
cherish, the peace and life which we, conquerors and conquered, 
enjoy by the same right.' At length came that most admirable 
step ; in accordance with a constitution of the Emperor Antoninus 
[Caracalla] all those within the Roman world were made citizens of 
Rome, as Ulpian says. In consequence, as Modestinus declares, 
Rome became the common fatherland. And of Rome Claudian 



wrote : 



To the peace-promoting customs of this city, 
Due it is that we are all one people. 



1 The Emperor Alexander said to Artaxerxes the Persian : ' Each one should remain within his 
own borders, causing no disturbance, and no one, elated by an uncertain hope, should undertake wars, 
but each should rest content with his own possessions ' [Herodian, VI. ii. 4]. 

2 See Cyril, Against Julian, Book V, where he praises the Jewish kings for the reason that they were 
content with their own frontiers. 



On Anger, 
II. xxxiv 

[4]. 

Annals, V 
[Xl.xxiv]. 



I [VIII. 
xiii. 16]. 



[Suetoni- 
us, Caesar, 
lxxx.] 

[Histories, 
IV. lxxiv.] 



Dig. I. v. 
17. 

Dig. L. i. 
33- 

[On the 
Consulship 
of Stilicho, 
III. 154, 
159.] 



772 



On the Law of War and Peace 



[Book III 



Seneca, 
Trojan 
Womcn 

[725 ff.]. 



Aelian, 

[Various 

History,] 

IV. v. 
Herodo- 
tus, VII 
[III. xv]. 
[Xeno- 
phon, 
Training 
of Cyrxis, 
III. i. 

33 .] 
[Seneca.] 
On Cle- 
mcncy, I. 
xxi [3]. 
[Polybius, 

V. ix.l 

Livy, 
XXXII 

WII. 
liv. 26]. 
Mithrida- 
tic Wars 
[xvii. 114]. 

[Livy, 
XXXIII. 
xii. 9.] 

Annais, 
XII [xix]. 



IV, Or by leaving the sovereign pozver to those who had held it 

1. Another form of moderation in victory is to leave to con- 
quered kings or peoples the sovereign power which they had held. 
So Hercules with Priam : 

Vanquished by his young foe's tears, 
* Take up ', he said, * the ruler's reins ; 
Sit elevated on your father's throne, 
But with better faith the sceptre wield.' 

Hercules, also, after conquering Neleus, committed the kingdom to 
Neleus's son, Nestor. Similarly the Persian kings used to leave the 
royal authority to conquered kings ; thus Cyrus to the Armenian 
king. Thus Alexander left royal power to Porus. 1 Seneca 2 praises 
this practice of ' taking nothing but glory from a vanquished king '. 
Polybius celebrates the goodness of Antigonus, who, although he 
had Sparta in his power, left the Spartans * their ancestral con- 
stitution and their freedom ' ; and by this act, it is narrated in the 
same passage, Antigonus obtained the highest praises throughout 
Greece. 

2. In the same way the Romans allowed the Cappadocians to 
use whatever form of constitution they wished, and to many peoples 
their freedom was left after a war. ' Carthage is free and has its own 
laws,' say the Rhodians to the Romans after the second Punic War. 
Pompey, says Appian, ' left some of the conquered peoples free '. 3 
When the Aetolians declared that there could be no sure peace 
unless Philip of Macedon were driven from his kingdom, Quintius 
said that they had stated their opinion without thinking of the 
Roman custom of sparing the vanquished. [553 ] He added : ' Who- 
ever is mildest to the conquered has the loftiest mind.' In Tacitus 
we read : ' From the vanquished Zorsines nothing was taken away.' 

V. Sometimes by the imposition of garrisons 

Sometimes, with the concession of sovereign power, provision 
is made for the security of the victors. Thus Quintius ordered 4 
that Corinth should be restored to the Achaeans, yet upon the 
condition that there should be a garrison in Acrocorinthus ; also 



1 And so Pepin to Aistolf the Lombard. 

* The whole passage deserves examination. It contains also this notable saying: ' This is 
to triumph even in accordance with one's victory, and to bear witness that one has found nothing 
among the vanquished which was worthy of the victor.' Pompey lef t to Tigranes a part of his realm ; 
Eutropius, VI [VI. xiii]. 

For a knowledge of their condition see Polybius, SeUclions on Embassies, vi [xix] ; Suetonius, 
in his life of Caesar, where he discusses Gaul [Divus Julius, xxv]. Guilleman has also something worth 
reading in his history of Switzerland [I. viii]. 

^ieless this was afterwards remitted; Polybius, Selections on Embassies, xi; Plutarch, 
Flaminius [Flamininus, x = p. 374 c]. 



Chap.XV] Moderation in Acquisition of Sovereignty 



773 



that Chalcis and Demetrias should be retained, until the anxiety 
with regard to Antiochus should be over. 



VI. Or even by tributes and similar burdens 

Often the levying of tributes also has for an object not so much 
the restitution of the expenses that have been incurred as the security, 
in the future, of both victor and vanquished. Cicero says of the 
Greeks : ' At the same time let Asia reflect on this, that if it were 
not held by this Empire there is no disaster of foreign war or domestic 
strife that would fail to assail it ; and since, moreover, this Empire 
can in no way be maintained without taxes, let Asia with a part of 
its produce contentedly purchase for itself eternal peace and rest.' 

In Tacitus Petilius Cerealis speaks to the Lingones and other 
Gauls on behalf of the Romans in the following words : * Although 
we have been so often provoked, this is the only burden we have 
laid upon you by right of victory, wherewith we might keep the 
peace ; for there is no quiet for the nations without armed forces, 
and armed forces cannot be had without pay, and pay cannot be had 
without tribute.' 

To this same problem apply also the other conditions which we 
mentioned when discussing unequal treaties the surrender of arms, 
of a fleet, 1 of elephants, not to maintain an army ready for battle 
nor an armed force. 



Letters to 
his Brother 
Quintus, I. 
i[".34] 



Histories, 
IV [lxxiv]. 



II. xv. 7. 



VII. The advantage derived from such moderation is pointed out 

1. Moreover to leave to the vanquished their sovereign powers 
is not only an act of humanity, but often an act of prudence also. 
Among the institutions of Numa there is praised that which aimed 
to exclude any shedding of blood from the rites of Terminus, indicat- 
ing that nothing is more useful in securing quiet and a sure peace 
than to remain within one's own frontier. Florus well remarks : ' It 
is more difncult to keep provinces than to win them ; they are won 
by force, they are retained by justice.' 

Not unlike this is the comment in Livy : ' It is easier to gain 
things one by one than to hold all together ' ; also, the remark oi 
Augustus in Plutarch : ' A greater task . . . than winning a great empire 
is the governing of an empire already in existence.' The ambassadors 
of King Darius said to Alexander : ' A foreign empire is a dangerous 
thing ; it is difncurt to hold what you may not be able to take. Some 
things it is easier to conquer than to defend ; by Hercules, how much 
more readily do our hands receive than retain ! ' 



Plutarch, 
Rotnan 
Questions, 
xv [= p. 
267 c]. 

[IV. xii.] 



XXXVII 

[xxxv. 6]. 

[Apo- 
thegms, 
p. 207 D.] 

[Curtius, 
IV. xi. 8.] 



Regarding the Persians, see Agathias, Book IV [IV. ix]. 



774 



On the Law of War and Peace 



[Book III 



[Aristides, 
In Praisc 
of Romc, 
P- 353 f-] 
Livv, 
XXVIII 
[XXXVI. 
xxxii. 6]. 

[III. x = 
690 E.] 
[Prcfacc, 
vii.] 

Valerius 
Maximus, 
IV. i [10]. 



2. This difficulty of holding an empire together is what Calanus 
of India * and, before him, Oebares the friend of Cyrus explained 
by the comparison of a dried hide, which rises up in one spot as soon 
as you press another spot with your foot ; and Titus Quintius in 
Livy by comparison with a tortoise, 2 which is immune to blows 
when gathered into its shell, but exposed and weak as soon as it has 
thrust out a part of its body. Plato, On Laws, Book III, applies to this 
situation the saying of Hesiod : ' The half is better than the whole.' 

Appian observes that not a few peoples who wished to come 
under the rule of the Romans were rejected by them ; while for 
other peoples kings were appointed. In the judgement of Scipio 
Africanus, in his time Rome already possessed so much that it would 
be greedy to seek for more ; and she would be richly fortunate if she 
lost nothing of what she held. The formula for making the lustral 
sacrifices, in which the gods were entreated to make the resources of 
Rome better and greater, he altered in such a way that he prayed 
that they might preserve Rome's resources in safety forever. 3 



Thucy- 
dides, I 
[xix] ; Iso- 
crates, Pan- 
athcnaic 
Oration 

[P- 243]. 

Demo 

sthenes, 

Onthc 

Ckcrso- 

ncsus ; 

Diodorus, 

XIII and 

XV. 

[Stobaeus, 

xliii. 27.] 



Annals, 
VI [xlii]. 



VIII. Examples ; zvith a discussion oja change in theform of govern- 
ment among the vanquished 

The Lacedaemonians, and, at first, the Athenians, claimed for 
themselves no sovereignty over the cities they had captured. They 
wished merely that these should use a form of government modelled 
on their own ; the Lacedaemonians, in fact, a government under 
the influence of the aristocrats, the Athenians one subject to the will 
of the people, as we learn from Thucydides, Isocrates, Demosthenes, 
and even from Aristotle himself in the fourth book of his Politics, 
[554] chapter xi, and the fifth book, chapter vii. This very thing 
is indicated in a comedy by Heniochus, a writer of those days, in the 
following manner : 

Then drew near to them two women, 

Who turned all things to dire confusion ; 

The one called Aristocracy, Democracy the other, 

Through whose solicitation the cities were driven to madness. 

A similar course is that which, according to Tacitus, was pursued 
by Artabanus at Seleucia : ' He placed the commons under the 
aristocracy ', he says, ' in accordance with his own interest : for the 

1 Plutarch has this in his Alexander [lxv p. 701 e]. 

* Plutarch [Flamininus, xvii p. 378 d] relates it thus : ' When he wished to dissuade the Achaeans 
who were seeking the island of Zacynthus, he said that they would run into danger if, like a tortoise, 
they extended their heads beyond the Peloponnese.' 

" [55 6 ], The consul Claudianus Julianus makesuse of this story in his letter to Pupienus and 
Balbinus [Capitolinus, Life of Maxitnus and Balbinus, xvii]. It was imitated by Augustus, who, as Dio 
[LIV. ix] says, * was praised because he wished to acquire no new territory, but thought that that, 
which was already held, was enough.* 



Chap.XV] Moderation in Acquisition of Sovereignty 



775 



rule of the people is close to liberty, but the despotism of the few 
is nearer to the licence of a king.' But the question whether changes 
of this sort make for the safety of the conqueror does not belong to 
our investigation. 



IX. If sovereignty is to be assumed, it is right to leave a part of it to 
the conquered 

If it is not safe to refrain from assuming any dominion over the 
conquered, the action may still be limited in such a way that a portion 
of the sovereign power may be left to them or to their kings. Tacitus 
calls it the practice of the Roman people ' to have kings also as instru- 
ments of subjection \ To the same author it seemed that ' Antiochus 
was the richest of the subject kings '. ' Kings subject to the Romans ' 
is the phrase in the Commentaries of Musonius ; also in Strabo, near 
the end of Book VI. Lucan writes : 

And all the royal purple which serves the Latin sword. 1 

Thus among the Jews the sceptre remained in the Sanhedrin, 
even after the confiscation of Archelaus. Evagoras, king of Cyprus, 
as we read in Diodorus, said that he was willing to be subject to the 
Persian king, but as one king to another. Alexander at diff erent times 
offered to the conquered Darius this condition, that Darius should 
rule over others, but should obey Alexander. 2 

We have elsewhere spoken of the ways of dividing the sovereign 
power. To some peoples a part of their govemmental power has 
been left, as to former possessors a part of their lands. 



[Agricola, 
xiv.] 

Histories, 
II [lxxxij. 



XV [ix]. 



I. iii. 17 ; 
III. viii. 3. 



X. 0/*, certainly, some degree of liberty should be left to the conquered 

But when all sovereignty is taken away from the conquered with 
respect to their private affairs and minor public matters it is still 
possible to leave to them their own laws, 3 customs, and officials. 
Thus in the pro-consular province of Bithynia the city of Apamaea 
had the privilege of governing itself as it pleased ; 4 we are so in- 

1 See the Panegyric addressed to Maximian [Eumenius, chap. xj. 

8 Such were also in Italy, in former times, the kings under the authority of other kings ; Servius, 
On the Aeneid, X [X. 655]. So in the Persians [24] of Aeschylus there are mentioned : 
Kings, subjects of the great king. 

So also among the Turks, on the authority of Leunclavius, Book XVIII. 

3 Philo, in the Embassy to Gaius [xxiii], says : ' Augustus gave no less attention to preservmg 
the laws peculiar to each people than to those of the Romans.' 

4 See Pliny, Letters, xciii, and the following letter of Trajan in Book X [X. xcii and xciii]. Under 
the Persians Sinope had a democratic form of government ; Appian, Mithridatic Wars [xii. 83, but 
referring to Amisus, not Sinope]. Such was the shadow of liberty among the Greeks under Roman rule. 
See Cicero, Letters to Atticus, VL i ; Pliny, Letters, VIII. xxiv. The Cypriots could not be summoned 
out of their island ; Cicero, Letters to Atticus, V. xxi [V. xxi. 6]. 



776 



On the Law of War and Peace 



[Book III 



LetUrs, X. 
lvi, lxxxiv, 
cxi and 
cxiii 

xlvii,lxxix, 
cxii and 
cxiv]. 
Ibid., 
xciii ;.\. 
xcii]. 



[Embassy 
to Gaius, 
xxxvi.] 

[Jewish 

War, V. 
ix. 4 ; VI. 

ii. i.] 



formed by the letters of Pliny, who says also that the Bithynians 
have their own officials and their own senate. And so in Pontus the 
state of the Amiseni [Amisus] enjoyed its own laws through the 
kindness of Lucullus. The Goths left the Roman law to the con- 
quered Romans. 

XI. Some degree of liberty should be left to the conquered, especially in 
the matter of religion 

i. A part of this indulgence is not to deprive the conquered of 
the exercise of their inherited religion, 1 except by persuasion. This 
Agrippa, in his speech to Gaius, which Philo quotes in his report of 
his embassy, proves to be as devoid of harm to the victor as it is gratify- 
ing to the vanquished. In Josephus, both Josephus himself and the 
Emperor Titus reproach the rebels of Jerusalem with the fact that, 
through the generosity of the Romans, the rights they enjoyed in the 
exercise of their worship were so complete that they could exclude 
foreigners from the Temple, even upon pain of death. 

2. If, however, a false religion is practised by the vanquished, 
the victor will do right in taking steps to prevent the oppression of 
the true faith, as Constantine did, when he crushed the faction of 
Licinius, and, after him, the Frankish and other kings. 



Xenophon, 
Training 
of Cyrus, 
IV [iv. io]. 



[Jugur- 
thine War, 

cii. 6.] 

Agricola 
txiii]. 



XII. At any rate the conquered should be treated with clemency ; and 
why 

i. Last of all is this word of caution. Even under the fullest 
and, as it were, despotic sovereignty, the conquered should be treated 
with clemency, and in such a way that their advantage should be 
combined with that of the conquerors. Cyrus bade the conquered 
Assyrians be of good cheer, saying that theirlot would be the same 
as it would have been if they had only changed [555] their king ; 
that they would retain their houses, their lands, their rights over 
their wives and children, which they had had up to that time ; indeed, 
if any one should wrong them, he and his men would be their avengers. 

In Sallust we read : ' The Roman people thought it better to 
gain friends than slaves ; and held it safer to rule over willing than 
over compulsory subjects. 2 The Britons, in the time of Tacitus, 

' It is better that some God should be worshipped there than none,' as we have just said [III. 
xii. 6. 1, note] in the words of Severus. So the Goths, in Procopius, Gothic War, II [II. vi], say that 
thcy have ccnstrained no one to join their faith. 

1 In Thucydides, V [IV. xix], the Lacedaemonians say : ' And so we think that great enmities 
may thus be transformed into lasting concord, not if any one, in avenging himself and making use of 
a more favourable situation, imposes upon cthers the necessity of swearing to unequal terms, but if, 
when he could do this, he handles the matter as temperately as possible, displaying not less justice 
than courage in conquering.' 



Chap.XV] Moderation in Acquisition of Sovereignty 777 

would patiently have endured the levy and tribute and the additional 
burdens of the Roman domination if they had not been subjected 
to wrongs ; these they bore impatiently, for they were subdued to 
the point of obedience, but not yet to that of slavery. 

2. The ambassador from Privernum, when asked in the Roman Livy, 
senate what sort of a peace the Romans were to expect from his SJd. 
people, said : c If you should have given to them a good peace, then 
you may expect it to be reliable and perpetual ; if a bad one, brief.' 
As the reason, there was added : * Do not believe that any people, 
or any man, will remain longer than is necessary in a condition with 
which he is dissatisfied.' 

Similarly, Camillus said that that authority was the most secure Livy, 
with which those who obeyed were pleased. The Scythians said to ^ 11 txm * 
Alexander : c There is no friendship between master and slave ; even Curtius, 
in time of peace the rights of war are maintained.' Hermocrates, in ^ ' 
Diodorus, declares : c It is not so glorious to conquer as to make xni[xix]. 
a mild use of victory.' Tacitus has a wholesome opinion regarding [Annais, 
the use of victory : c Wars have noble endings, whenever they are ' ^ 

terminated by pardoning.' In a letter of the dictator Caesar are the [Cicero, 
words : * Let this be a new method of conquering, to fortify our- L A e uilus 
selves with mercy and generosity.' ix. viic.] 



CHAPTER XVI 

MODERATION IN REGARD TO THOSE THINGS WHICH BY THE LAW 
OF NATIONS HAVE NOT THE RIGHT OF POSTLIMINY 



Dig. IX. 
iv. 27, x. 
Dig. XLI. 
i. 20. 
On Bent- 
fits, V. xii. 



Digest, 
XLIX. xv. 
27. 



Aegidius 
Regius, De 
Actibus 
Superna- 
turalibus, 
disp. 31, 
dub. 7, 

ZIO. 122. 

[Epistola] 
Canonica, 
X. 



I. Moral justice requires that the things which our enemy has taken 
jrom another in an unlawful war shall he restored 

1. We have explained above to what extent things become the 
property of the captors by a lawful war. From such things we must 
deduct those which are recovered by right of postliminy ; [557] 
for these are regarded as not having been captured. 

But we said that that which was taken in an unlawful war must be 
restored, not only by those who took it, but also by others to whom 
the thing has come in any manner whatsoever. For no one, the 
authorities of the Roman law declare, can transfer to another more 
right than he himself has. This Seneca briefly explains thus : ' No 
man can give what he does not have.' The person who first took 
the thing did not have moral ownership (dominium internum), there- 
fore the person who obtains his right from him will not have it ; 
hence the second or third possessor takes an ownership which, for 
the sake of explanation, we call legal (externum), that is, an ownership 
which has the advantage of being everywhere protected by the 
authority and power of the courts. Nevertheless, if the possessor 
uses this advantage against him from whom the thing was taken by 
an act of injustice, he will not act rightly. 

2. We may here cite as pertinent the opinion which the worthy 
jurists gave with regard to a slave who had been captured by robbers 
and had afterward reached the enemy ; it was true that he had been 
stolen, and neither the fact that he had been in the power of the 
enemy nor that he had returned by postliminy nullified the right of 
the original owner. On the basis of the law of nature a similar opinion 
must also be rendered with regard to him who was captured in an 
unlawful war, and afterward, through an unlawful war, or from 
other causes, came into the power of another ; for in moral justice 
there is no distinction between an unlawful war and brigandage. 
Gregory of Neocaesarea l gave answer in conformity with this opinion 
when he was consulted regarding the fact that certain men of Pontus 
had acquired goods of their fellow citizens which had been captured 
by barbarians. 



1 [559] He is followed by Petrus, De Poteslale Principis, chapter iii, qu. 4, and Bruningius, De 
Homagiis, concl. 241. 

77 



Chap.xvi] Moderation in case of No Postliminy 



779 



III [X. I]. 



[IV. xxix. 
4-] 



II. Examples 

1. Such things, then, must be restored to those from whom 
they were taken ; and we often see that this has been done. Livy, 
after relating that the Volscians and Aequians were defeated by 
Lucius Lucretius Tricipitinus, says that the spoil was exposed in the 
Campus Martius, in order that each might take home what belonged 
to him within three days. The same author, having told of the rout 
of the Volscians by the dictator Posthumius, adds : ' Part of the 
booty was given back to the Latins and Hernicans upon their recogniz- 
ing what was theirs ; part the dictator sold at auction.' Elsewhere 
he has : ' Two days were allowed to the owners for identifying their 
property.' Livy, again, after describing the victory of the Samnites 
over the Campanians, writes : ' What most delighted the victors was 
the recovery of seven thousand four hundred prisoners of war, and 
a huge booty belonging to their allies ; and the owners were sum- 
moned by proclamation to identify and recover their belongings on 
an appointed day.' Afterward he recounts a similar act on the part 
of the Romans : 

The Samnites attempted to seize the Roman colony of Interamna, but did not 
take the city. After pillaging the fields, they were thence driving off another booty 
composed of both men and cattle and also the captured colonists, when they fell in with 
the consul returning from Luceria, and not only lost their spoil, but, owing to being in 
disorder in a long and encumbered column, they were themselves cut to pieces. The 
consul by proclamation called together the owners of Interamna to identify and recover 
their property, and leaving his army there, he set out for Rome because of the meeting 
of the assembly. 

In another passage, dealing with the spoil which Cornelius Scipio 
riad taken at Ilipa, a city in Lusitania, the same writer speaks thus : 
' This was all set out outside the town, and owners were given the 
right to identify what was theirs. The rest was turned over to the 
quaestor to be sold ; what was realized therefrom was divided among 
the soldiers.' After the battle fought by Tiberius Gracchus near 
Beneventum, we further read in Livy : ' All the booty, except the 
prisoners, was given to the soldiery ; there were also excepted such 
cattle as their owners should identify within thirty days.' 

2. Of Licius Aemilius, who "conquered the Gauls, Polybius 
writes : ' He restored the booty to those from whom it had been 
seized.' Plutarch and Appian relate that Scipio did likewise, 1 when 
upon capturing Carthage he found there many temple offerings 

1 Also Diodorus Siculus, in the Excerpta Peiresciana [p. 345]. 

Valerius Maximus, I. i. 6 [V. i. 6] : ' The humanity of the later Afncanus also was notably and 
widely in evidence. For when he had taken Cartbage he sent letters around to the cities of Sicily, 
that they might send representatives to recover the ornaments of their temples which had been carned 
off by the Carthaginians, and to see that these should be restored to their former places.' 



i. 12.] 



XXIV 

[xvi. 5]. 



Histories, 
II [xxxi]. 

Plutarch, 

Apothegms 

[=p. 200 b] , 

Appian, 

Punic 

Wars 

[xx. 133]. 



780 



On the Law of War and Peace 



[Book III 



[II. XXXV. 

86.] 



[IV. 
xxxiii.73.] 

XXXI 

[xv. 5]. 

VIII 

[xiii.nf.]. 

Strabo, 
XIII 
[XIV. i. 
26]. 



which the Carthaginians had carried thither from the cities of Sicilv 
and other places. 

Cicero in his oration Against Verres, dealing with the administra- 
tion of justice in Sicily, says : ' The Carthaginians had at one time 
taken the town of Himera, which was a particularly famous and rich 
city of Sicily. [558] When the war was ended, Scipio, who thought 
it worthy of the Roman people that our allies, in consequence of 
our victory, should recover what was theirs, took pains that, so far 
as possible, what had been taken by Carthage should be restored to 
all the Sicilians.' The same writer gives a sufficiently lengthy dis- 
cussion of this act of Scipio when treating of the statues in his oration 
Against Verres. 

The Rhodians restored to the Athenians four of their ships 
which had been taken by the Macedonians and recaptured. So 
Phaneas the Aetolian thought it right that what the Aetolians had 
had before the war should be returned to them ; Titus Quintius 
did not deny that this would be just, if it were a question of cities 
taken in war, 1 and if the Aetolians had not broken the terms of the 
alliance. The Romans even restored to their ancient condition 
the treasures once dedicated at Ephesus, which kings had made 
their own. 



II. x. 9. 



Getusis, 

xiv. 16. 



III. Wheiher anything may be deducted from that which is restored 

1. If a thing of the sort under consideration has come into 
any one's hands by way of trade, will he be able to charge the person 
f rom whom it was originally taken the price which he has paid ? 

It is consistent with what we have said elsewhere that the possessor 
may charge as much as the recovery of the thing despaired of would 
have been worth to him who had lost it. But if such an outlay may 
be recovered, why not also an evaluation of the labour and danger, 
just as if by diving some one had recovered another's property which 
was lost in the sea? Pertinent to this question, it seems to me, is 
the story of Abraham, when he returned to Sodom as victor over the 
five kings. ' He brought back all the goods ', says Moses ; that is, 
the goods which, as he had previously related, had been captured by 
the kings. 

2. Again we are not to attribute to any other cause the arrange- 
ment which the king of Sodom proposed to Abraham, that he should 
restore the prisoners, but keep the other things for himself in return 



1 Pompev restored Paphlagonia to Attalus and Pylaemenes ; Eutropius, VI [VI. xi]. 

In the alliance of the Pope, the Emperor Charles V, and the Venetians against Soliman, it was 
Egreed that each party should recover what had been his; Paruta, VIII [IX = p. 650, ed. 1605]. In 
consequence, when the Spaniards had taken Cephallenia, they restored it to the Venetians. 

:ient to this question is also a passage in Anna Comnena [XI. vi], dealing with Godefroy. 



Chap. XVI] Moderation in case of No Postliminy 



781 



for his toil and danger. Abraham, however, being a man not only 
of a pious but also of a lofty mind, 1 wished to take nothing at all for 
himself ; but from the things that were recovered (for this narrative, 
as we have said, relates to them) as though by his own right he gave 
a tenth to God, deducted the necessary expenses, and desired that 
a share be assigned to his allies. 



IV. Even subject peoples or divisions of peoples are to be restored to 
those to whom they belonged, if they have been unjustly taken over 
by the enemy 

Furthermore, just as goods are to be restored to their owner, so 
peoples also, 2 and divisions of peoples, are to be restored to those who 
had the right of dominion over them, or even to themselves, if they 
had been independent prior to suffering the unjust violence. Thus 
we learn from Livy that, in the time of Camillus, Sutrium was 
recovered and restored to the allies of the Romans. The Lacedae- 
monians restored the Aeginetans and the Melians to their cities. 
The Greek states, which had been invaded by the Macedonians, 
were restored to freedom by Flaminius. 

Flaminius also, in a conf erence with the ambassadors of Antiochus, 
declared it was right to set free the cities of Asia, which bore Greek 
names and which had been captured in war by Seleucus the great- 
grandfather of Antiochus, which had been lost and recovered by the 
same Antiochus ; * for ', he said, ' the colonies were not sent to 
Aeolia and Ionia to be subject to a king, but to increase the race, 
and to spread a very ancient people throughout the world.' 



Livy, 
VI [iii. 
10]. 
Livy, 
XXXIII 
[xxxii]. 
Xenophon, 
Affairs of 
Greece, III 

[II.ii.Q]. 



XXXIV 

[lviii. 13]. 



V. At what time the obligation to make restoration ceases 

Usually the question is raised also regarding the period of time 
in which the moral obligation to restore a thing may cease. But in 

1 This observation is well made by Iacchiades, On Daniel, v. 17. Sulpicius [Sulpicius Severus, 
Sacred History, I. v] says of Abraham : ' He restored the rest to those from whom it had been seized.' 
Ambrose, on the Patriarchs, I [On Abraham, I. iiij, writes: *And so, since he sought not for himself 
a reward from men, he received it from God.' 

Very similar to this was the conduct of Pittacus and Timoleon. ' Pittacus of Mitylene, when with 
the consent of all he was offered the half of the territory recovered, turned his mind away from the 
gift, because he deemed it unworthy to dim the glory of his valour by the greatness of the spou" ; 
Valerius Maximus, VI. v. i. Of Timoleon Plutarch [Comparison of Timoleon^ and Aemihus Paulus, 
ii = p. 277 b] says : ' Under such circumstances it is not base to receive, but it is better not to receive ; 
such self-restraint implies a certain superabundance of virtue, which shows that it can do without 
those things which are permitted.' 

Cf. what was previouslv said, in II. xiv. 6 and III. iv. 1. _ ^ 

2 The exiles from Saguntum after six years were restored by the Romans. Antony ordered that 
all those who had been made slaves in the war with Cassius should be Hberated, and that property 
should be restored to its owners. Likewise Calatrava was restored by the king of Castile and others 
to the soldiers from whom it had been taken by the Moors ; Mariana, XI [XI. xxv]. Cf. what is above 
in III. x. 6. 



782 On the Law of War and Peace [Booklll 

the case of citizens under the same government the question is 
answered according to their laws, provided that these admit a moral 
right and do not consist in a legal right only ; this may be gathered 
from the language and scope of the laws by a careful examination. 
In the case of those, however, which are foreign in relation to one 
another, the question is to be answered in accordance with conjecture 
11. iv. as to abandonment, which we have discussed elsewhere, so far as our 

purpose requires. 

VI. What is to be done in a doubtjul case 

If, however, the lawfulness of the war is seriously open to ques- 

cicero, On tion, the best course will be to follow the counsel of Aratus of Sicyon, 1 

Srilf '82] wno on tne one s ^ e P ersua ded the new possessors to accept payment 

and to give up what they held, and on the other persuaded the former 

owners to consider it more advantageous to have paid to them the 

value of their property than to recover it. 

1 This was done by King Ferdinand, as Mariana records, XXIX. xiv. 



CHAPTER XVII 



ON THOSE WHO ARE OF NEITHER SIDE IN WAR 

I. From those who are at peace nothing should be taken except in case 
of extreme necessity, and subject to the restoration of its value 

It might seem superfluous for us to speak of those who are not 
involved in war, since it is quite clear that no right of war is valid 
against them. But since in time of war on the pretext of necessity 
many things [560] are done at the expense of those who are at 
peace, especially if they are neighbours, we must briefly repeat here 
what we have said elsewhere, that the necessity which gives any right 
over another's property must be extreme ; furthermore, that it is 
requisite that the owner himself should not be confronted with an 
equal necessity ; that even in case there is no doubt as to the necessity 
more is not to be taken than the necessity demands ; that is, if 
retention is sufBcient, then the use of a thing is not to be assumed ; 
if the use is sufhcient, then not the consumption ; if consumption is 
necessary, the value of the thing must then be repaid. 



II. ii. 10. 



II. Examples of self-restraint and precepts 

1. When Moses and his people were pressed by the extreme 
necessity of passing through the land of the Edomites, he said, first, 
that he would pass along the royal road, and would not turn off into 
the ploughed fields or vineyards, and if he should have need of their 
water he would pay its price. Famous Greek and Roman generals 
assumed the same obligation. In Xenophon, the Greeks who were 
with Clearchus promised the Persians that they would march through 
without causing them any damage ; and if they would have supplies 
for the Greeks to purchase these latter would not seize things to eat 
or drink from any one. 

2. Dercyllides, as the same Xenophon relates, * led his forces 
through peaceful territory in such a way that his allies suffered no 
loss.' Livy says of King Perseus : ' He returned to his kingdom 
through Phthertis, Achaia, and Thessaly, without causing damage or 
injury to the lands through which he marched.' Of the army of Agis 
of Sparta, Plutarch says : ' They were a marvel to the cities as they 
traversed the Peloponnesus quietly, without injury and almost without 
noise.' x 



[Numbers, 
xx. 17 .] 



[Anabasis, 
Il.iii. 
23 ff.]. 



[Greek 
History, 
III. i. 10.] 

[XLI. 
xxii. 6.] 



[Agis, : 
= p. 
801 D.] 



1 Plutarch offers the same testimony to Titus Quintius Flaminius [Flamininus , v=p. 371 D]. 
1569.27 3 G 7 8 3 



7 8 4 



On the Law of War and Peace 



[Book III 



II [XXV]. 



Forthe 
Manilian 
Law [xiii. 
39]- 

Stratege- 
mata, 
II. xi [7]. 



[AUxander 

Severus, 

1.] 



[Latinus 
Pacatus, 
Panegyric, 
xxxii.] 



[On the 
Consulship 
of Stilicho, 
I. 163 ff.] 



Velleius says of Sulla : ' You would think that he had come into 
Italy not to averige in war, but to establish peace, with so great quiet 
did he lead his army through Calabria and Apulia into Campania, 
showing exceptional care for crops, fields, cities, and men.' Of 
Pompey the Great Cicero x affirms that ' his legions came to Asia in 
such a way that not only the hands of so vast an army, but even 
its footprints could be said to have done no harm to any one at 
peace '. Of Domitian Frontinus thus speaks : * When he was estab- 
lishing forts in the lands of the Ubii, he ordered that the value should 
be paid for the crops of the places which he incorporated in the 
fortifications ; and by the report of this act of justice he bound to 
himself the allegiance of all.' 

Of the Parthian expedition of Alexander Severus, Lampridius 
writes : ' He conducted it with so great discipline, demanding so 
high respect for himself, that not soldiers, but senators, might be 
said to be passing by ; wherever the soldiers were on the march, the 
tribunes were under arms, the centurions respectful, the soldiers 
gentle. Himself, however, the provincials received as a god, because 
of these great and numerous benefits.' Of the Goths, 2 Huns, and 
Alans, who were in the service of Theodosius, the Panegyrist says : 
' There was no rioting, no disturbance, no plundering, as is usual 
with barbarians ; indeed, whenever there was a shortage of supplies 
they bore the want with patience, and by their abstinence they 
augmented the grain which they diminished by their number.' 

Claudian attributes the same conduct to Stilicho : 

So great the peace, so great the fear, the guardian of right, 

'Neath your command, that no plundering of vineyard nor of grain field 

Cheated the farmer of his harvest. 

Similar conduct is attributed by Suidas to Belisarius. 3 



1 Also Plutarch [Potnpey, x = p. 624 a] : ' When he heard that his soldiers were acting too 
licentiously on the march he put a seal on their swords ; and, if any one broke this, he was punished.' 

* With regard to the moderation of this people we find much in Cassiodorus, as in [Variae,] V. x, 
and II. xiii [V. x, xi and xiii]. Besides, in letter xxv of the same book [V. xxvi] is this: 'Lay waste 
neither the fields nor the meadows of the landholders, but hasten with all self-restraint, that your 
coming may cause us delight. Because for this we willingly undergo the expenses imposed by the 
army, that civilization may be preserved intact by those under arms.' Also in IX. xxv : ' No losses 
to the owners were occasioned by his arms.' 

* This virtue in Belisarius is often acclaimed by Procopius, the companion and witness of his 
actions. Seehis noble speech, which is pertinent here, delivered to his soldiers in Sicily when 1 

on the way to Africa, and the description of his march through Africa, in the Vandalic War, I [I. xii 
and xvii]. I shall cite in full the following passage from the Golhic War, III [III. i] : 

He acted with such care and forethought toward the peasants that none of them suffered violence 
while Belisarius led the army. On the contrary, all became rich wherever he arrived with a large 
body of troops ; [563] for they sold their goods to the soldiers at their own price. And when the 
crops were npe he took anxious care that they should not be spoiled by the cavalry ; in addition, 
no one at all was allowed to touch fruit hanging on the trees. 

See tlve similar praise of the Germans in their expedition to the Holy Sepulchre, in Nicetas, 
On Manuel Cotnnenus [I. iv]. Gregoras also lauds the same conduct in the Venetians, IX [IX. v]: 
* There was no one who was not struck with admiraticn for the discipline of the Venetians, and their 



Chap.xvil] On those who are of neither side in War 



785 



3. This condition was brought about by scrupulous painstaking 
in providing for necessities * by the regular payment of troops, and 
by vigour in enforcing discipline, a rule of which you hear in Am- 
mianus 2 : ' The lands of those at peace must not be trampled upon.' 
In Vopiscus, Life of Aurelian, we read : ' Let no one seize another's 
fowl ; let no one touch a sheep ; let no one carry off a bunch of grapes, 
let no one destroy grain, let no one requisition oil, salt, or wood.' 
Likewise in Cassiodorus : ' Let them live with the provincials under 
the civil law ; [561] let not the spirit of him, who feels that he is 
armed, become insolent, because our army as a shield should guarantee 
quiet to the Romans.' These rules may be supplemented by the 
saying of Xenophon, in Book VI of the Anabasis : c A friendly 
city should not be compelled to give anything against its will.' 

4. In the light of these sayings you would aptly interpret that 
admonition of a great Prophet, nay, a greater than a Prophet : 
' Extort from no man by violence, neither accuse any one wrong- 
fully ; 3 and be content with your wages.' 4 Similar to this is the 
order of Aurelian in the passage of Vopiscus which has been cited : 
' Let each one be satisfied with his allowance, let him live by the 
spoil of the enemy, not by the tears of the provincials.' 

No one should think that, while it is fine to say these things, 
they cannot be carried into effect ; for neither would the Divine 
Man urge them, nor the wise authors of laws prescribe them, if they 
believed that such rules could not be enforced. In fact, we must 
grant that that can be done which we see done. 5 Therefore we have 
adduced examples, to which may be added the notable example 
which Frontinus records of Scaurus, 6 that an apple-tree, which the 

magnanimity combined with justice. For no one of their army wished to go out and take anything 
without paying the price.' 

1 Pliny, Natural Hisiory, XXVI. iv : ' Else why have the Roman generals always devoted their 
first attention to commerce when waging war ? ' 

Cassiodorus, [Variae,] IV. xiii : ' Let him have something to buy, that he may not be compelled 
to think of what he can carry off.' He has something similar in V. x and xiii. 

See also Book XXI [XXI. v. 8]. 

3 You might translate ' from pillage ', in which sense this word is taken in the Greek version in 
Job, xxxv. 9 ; Psalms, cxviii. 121 [cxix. 122] ; Proverbs, xiv. 33 [xiv. 31], xxii. 16, cxviii. 3 [xxviii. 3] ; 
Ecclesiastes, iv. 1 ; and also Levilicus, xix. n. The Vulgate translator of Luke, xix. 8, renders the 
same Greek word by defraudare (' defraud '). 

4 On this passage of Luke, Ambrose [On Luke, II. lxxvii] says: 'For this purpose pay was 
instituted for military service, that the soldier, in seeking his subsistence, might not act as a robber.' 
This is copied by Augustine in his sermon xix, On the Words of Our Lord according to Matthew 
[Sermones, lxxxii. 1, really not the work of Augustine ; see Appendices, V. lxxxvii. 1, Migne]. 

On this subject there are notable edicts in Gregory of Tours, II. xxxvii ; in the Capitularies of Charles 
and his successors, V, tit. clxxxix ; in the Councils ofFrance, II ; in the Capitularies of Louis the Pious, 
II. xiv, and in vol. III ; in the Council of St. Macra. 

Add the Bavarian Law, II. v. Gunther [Ligurinus, VII. 299 ff.] thus reports a law of Frederic I : 
If one has burned the farms or homes of folk 
At peace, with shaven head he will be marked, 
And after many blows from camp will he be chased. 

* And so Guicciardini states, in Book XVI. 

On the severity of Niger, because of the theft of a cock, see Spartianus [Pescennius Niger, x]. 

3 G2 



XVIII 
[ii. 7]. 

Aurelian 
[vii]. 



[Variae, 
VII. iv.] 



[VI.ii.6.] 



Luke. iii. 
14. 



[Aurelian, 
vii.] 



IV. i 

[Stratege- 
mata, IV. 

iii. 13]. 



786 



On the Law of War and Peace 



[Book III 



XXVIII 
[xxiv. 9]. 



XL [xxii. 
10-11] . 



Annals, 
XII [xlix]. 
Histories, 
III [ii]. 



[I. xxi. 
56.] 



Aegidius 
Regius, De 
Aciibus 
Superna- 
turalibus, 
disp. 31, 
dub. 7, 
no. 95. 



survey had included in the Hnes of the camp, was left on the following 
day, when the army had marched off, with its fruit untouched. 

5. Livy, after relating that the Roman soldiers in the camp at 
the Sucro had behaved themselves with too great licence, and that 
some of them had gone at night to pillage in the neutral land about 
them, adds that everything was done through the greed and licence 
of the soldiers and nothing according to regulation and discipline. 
There is another notable passage of the same writer, when he describes 
the march of Philip through the land of the Denseletae : 

Thev were allies, but from lack of supplies the Macedonians plundered their territory 
just like that of the enemy ; for, plundering on all sides, they first devastated homesteads, 
and then even some villages, to the great shame of the king, when he heard the voices 
of his allies calling in vain upon the gods, who are the guardians of treaties, and upon 
his own name. 

In Tacitus, the reputation of Pelignus is one of shame, since he 
plundered allies rather than enemies. The same author observes that 
the soldiers of Vitellius were in idleness throughout the Italian 
municipalities, and a source of dread to their hosts alone. Also, in 
Cicero's passage on the city praetorship, in his Against Verres, is 
this accusation : ' You gave your attention to the plundering and 
harassing of the peaceful towns of the allies, and of our friends.' 

6. At this point I cannot pass without mention the opinion of 
the theologians, which I think is very true, that a king, who has not 
paid what he owes to his soldiers, is responsible for the losses which 
in consequence have ensued, not only to the soldiers, but also to his 
own subjects and their neighbours, whom the soldiers under pressure 
of want have treated badly. 



III. i. 



I [XXXV]. 



III. What the duty of those at peace is towards belligerents 

1. On the other hand it is the duty of those who keep out of 
a war to do nothing whereby he who supports a wicked cause may 
be rendered more powerful, or whereby the movements of him who 
wages a just war may be hampered, according to what we have said 
above. In a doubtful matter, however, those at peace should show 
themselves impartial to either side in permitting transit, in furnish- 
ing supplies to troops, 1 and in not assisting those under siege. In 
Thucydides the Corcyreans say that it is the duty of the Athenians, 
if they wish to be impartial, either to prevent the Corinthians from 
hiring troops on Attic soil, or to allow them the same privilege. 
Philip, king of Macedon, was charged by the Romans with having 
violated his treaty in two ways, both in having done injury to the 



1 See the noble example in Paruta, Book VIII. 



Chap.xvil] On those who are of neither side in War 



787 



allies of the Roman people, and in having aided the enemy with 
soldiers and money. 

The same points are stressed by Titus Quintius in a conference 
with Nabis : 

* Still ', you say, ' I have not, strictly speaking, done violence to you and your friend- 
ship and alliance.' How many times do you wish me to prove that you have done this ? 
I do not wish to do so at greater length, and I shall sum up the gist of the matter. By 
what things, then, is friendship violated ? In very truth by these [562] two things, 
by treating my allies as enemies, and by allying yourself with the enemy. 

2. In Agathias we read that an enemy is one who does what 
the enemy wishes ; and in Procopius, that he is counted in the ranks 
of the enemy * who supplies a hostile army with what is directly 
useful for war. Demosthenes long ago said : ' He who creates and 
devises the means whereby I may be captured is my enemy, even if 
he does not strike me nor hurl a javelin at me.' Marcus Acilius told 
the Epirotes, who had not supported Antiochus with troops, but 
were accused of having sent him money, that he did not know whether 
he should class them as enemies or those at peace. The praetor 
Lucius Aemilius censured the people of Teos for having aided the 
fleet of the enemy with supplies, and for having promised them wine ; 
adding, that he would treat them as enemies unless they gave the 
same to the Roman fleet. And there is recorded a saying of Caesar 
Augustus : ' A state, which receives an enemy, loses the right of 
peace.' 

3. It will even be of advantage to make a treaty with either 
party that is waging war, in order that it may be permissible to 
abstain from war while retaining the goodwill of either, and to 
render to each the common duties of humanity. We read in Livy : 
6 Let them desire peace with either side, as befits impartial friends ; 
let them not intervene in the war.' Archidamus, king of Sparta, 
when he saw that the Eleans were leaning to the side of the Arcadians, 
wrote a letter containing only this : ' It is a good thing to remain 
quiet.' 



[Livy, 
XXXIV. 
xxxii. 14.] 



III [IV. 

iv]. 
Gothic 
War, I 
[iii]. 

Philippics, 
III [ix. 17 

= P- 115]. 
[Livv,] 
XXXVI 
[xxxv. 9]. 



XXXVII 

[xxviii. 2]. 



Plutarch, 
Brutus 
[v=p. 
ioiid]. 



XXXV 

[xlviii. 9]. 

[Plutarch, 
Apoth., 
p. 219 a.] 



1 On the other hand he rightly says that we must call ally and friend not only him who takes 
his post beside us in battle, but also him who openly supplies all the things necessary for waging war ; 
this is in the letter of Amalasuntha to Justinian [Procopius, Golhic War, I. iii]. 



36-] 



Plutarch, 
Roman 
Questions, 
xxxix [= 
P- 273 T], 
and 

Marcellus 
[Comp. of 
Pehpidas 
and Mar- 
cellus, iii = 
P- 317 D]. 
On Anger, 



Digest, 
1*5 

22). 



[564] CHAPTER XVIII 

OX ACTS DONE BY INDIVIDUALS IN A PUBLIC WAR 

I. The question whether it is permissible for individuals to do harm 
to a public enemy is discussed with special regard to the law of 
nature, the law of nations, and municipal law 

1. What I have heretofore said applies chiefly to those who 
either possess the supreme command in war or are carrying out 
public orders. We must also consider what is permissible for an 
individual in war, not only according to natural and divine law, but 
also according to the law of nations. 

In his iirst book On Duties, Cicero says that the son of the Censor 
Cato had served in the army of the general Pompilius, but that the 
legion in which he was serving was disbanded; nevertheless, since 
the youth from love of warfare remained in the army, Cato wrote 
to Pompilius that he ought to oblige the young man to take the 
military oath a second time, if he wished him to remain in the army. 
Cato gave as a reason that after the first oath had been cancelled 
his son could not lawfully fight with the enemy. Cicero adds the very 
words of Cato from a letter to his son, in which he warns the youth 
to avoid engaging in battle, for the reason that it is not right for one 
who is not a soldier to fight with an enemy. 

Similarly we read that Chrysantas, a soldier of Cyrus, received 
praise because, in an attack on the enemy, he drew back his sword 
as soon as he heard the signal for retreat. 1 Also Seneca said : ' He 
who disregards the signal for retreat is called a worthless soldier.' 

2. But those are deceived who think that the principle thus 
stated has its origin in the law of nations. This becomes clear if you 
consider that, just as any one is permitted to seize the property of 
an enemy, so also, as we have shown above, it is permissible to kill 
an enemy. For according to the law of nations enemies are held to 
be entitled to no consideration. The advice of Cato, therefore, 
comes from Roman military discipline, which, according to Modes- 
tinus, contained the provision that one who had not obeyed orders 
should be punished with death, even if what he had done turned 
out successfully. But one who had fought an enemy outside the ranks 
and without the command of the general was understood to have 
disobeyed orders, as the instructions of Manlius teach us. The 
reason is that, if such disobedience were rashly permitted, either the 
outposts might be abandoned or, with increase of lawlessness, the 



788 



1 Scc Xenophon, Training ofCyrus [IV. i. 2]. 



Chap. XVIII] On Acts done by Individuals in a Public War 789 

army or a part of it might even become involved in ill-considered 
battles, 1 a condition which ought absolutely to be avoided. 

Consequently Sallust, describing the Roman discipline, says : 
' In war punishment is more often inflicted on those who have fought 
against the enemy contrary to orders than against those who have 
withdrawn from battle too slowly when recalled.' A certain Spartan, 
who was on the point of slaying an enemy, heard the signal for 
retreat and held back his stroke, giving as the reason, ' It is in fact 
better to obey the commander than to kill an enemy.' The reason 
why a discharged soldier cannot kill an enemy is thus stated by 
Plutarch : he is not bound by the military laws, by which those who 
are going to fight ought to be bound. According to Arrian, Epictetus, 
referring to the deed of Chrysantas just mentioned, said : ' It seemed 
to him so much better to obey the will of his commander than his 
own.' 

3. If, however, we regard the law of nature and moral justice, 
it is apparent [565] that in a lawful war any person is allowed to 
do whatever he trusts will be of advantage to the innocent party, 
provided he keeps within the proper limits of warfare ; nevertheless 
he is not allowed to make captured property his own, because nothing 
is due to him, unless indeed he is enforcing a legal penalty according 
to the common law of mankind. From our previous discussion we 
can understand how this last right has been restricted by the law of 
the Gospel. 

4. Now, a command may be either general or particular. 
A general command is exemplified in the words which the consul 
was accustomed to utter in the presence of the Romans in case of 
an uprising : ' Let those who wish the safety of the state follow me.' 
Individual subjects, moreover, in addition to the right of self-pro- 
tection, are sometimes given the right to kill in case this is to the 
advantage of the state. 



[Catiline, 
ix. 4.] 



[Plutarch, 
Apoth., 
lxxi = p. 
236 E.] 



[Roman 

Questions, 

xxxix=p. 

273 E-] 

II. vi [15]. 



II. xvii 
[II. xx. 
10]. 

Servius, 
Onthe 
Aeneid, 
VIII 
[line 1]. 
Code, III. 
xxvii. 1 
and 2. 



II. What in respect to the enemy is permitted by moral justice to those 
who are serving in the army, orjitting out ships, at their ozvn expense 

1. A special command may be given not only to those who 
receive pay, but also to those who serve at their own charges ; and 
a more important consideration to those who support a part of 
the war with their own expenditures, such as those who fit out and 
maintain ships at private cost. Such contributors, in lieu of pay, 
are generally allowed to hold captured property as their own, as we 
have said elsewhere. How far this practice may be extended without 



III. vi 

[24]. 



1 Thus Avidius Cassius gave, as a reason for the sentence he imposed, ' that there mi^ht have 
been an ambuscade ' ; so Vulcacius [Avidius Cassius, iv]. 



790 On the Law of War and Peace [Booklll 

the violation of moral justice and love, is a proper question for dis- 
cussion. 

2. Justice has regard either for the enemy or for the state 
itself with which an agreement is made. We have said that posses- 
sion of all things, which can support war, may be taken from the 
enemy for the sake of security, but under the condition of making 
restitution. Indeed absolute ownership may be acquired in com- 
pensation for that which is due to a state waging a lawful war, either 
from the beginning of the war or from a later act, whether the pro- 
perty belongs to the hostile state or to individuals, even though the 
individuals themselves be guiltless ; the property of the guilty may 
be taken away and acquired by the captors as a means of imposing 
a penalty. Enemy goods will therefore become the property of those 
who are conducting at their own expense a part of the war, so far as 
this affects the enemy, provided that the limit which I have men- 
tioned be not exceeded ; whether the limit has been reached ought 
to be decided by a fair-minded judgement. 

III. What in respect to their own state is lazvful for those who are 
serving in the army, or fitting out ships, at their own expense 

As regards their own state the arrangement with such contributors 
will be just, according to the standard of moral justice, if there 
shall be equality in the contract, that is, if the expenses and dangers 
shall be as great as the chance of booty. For if the expectation of 
booty shall be much greater, whatever shall be acquired in excess 
ought to be restored to the state. The case is like that of a man 
who has bought at a very low price a cast of the net, which is, indeed, 
of uncertain value, but is easy to make and warrants the expectation 
of a great catch of fish. 

IV. What the rule of Christian love demands of such persons 

Even when justice, strictly speaking, is not violated, one may sin 

against the duty which consists of loving others, especially the duty 

prescribed by the Christian law. A case of this character might arise 

if it should be apparent that plundering by such persons would not 

be especially harmful to the enemy as a whole, nor to the king, nor 

to those who are in fact guilty, but would harm innocent persons, 

and in fact to such an extent that it would plunge them into the 

greatest misfortunes, into which it would be the negation of mercy 

, r# to cast those who are privately indebted to us. Now if to this is 

word added the consideration that such plundering will have no notable 

n o 8# ' eflect in ending the war, or in weakening the public strength of the 

versc5- enemy, then gain acquired solely in consequence of the unhappy 



Chap. XVIII] On Acts done by Individuals in a Public War 791 

condition of the times * ought to be considered unworthy of a just 
man, and especially of a Christian. 

V. How a private war may be mingled with a public war 

Sometimes it happens that a private war arises in connexion with 
a public war ; as, for example, if a person has f allen among enemies 
and his life or property is endangered. In such cases the rules should 
be observed which we have elsewhere stated in regard to the limit 
permissible in self-defence. 

Public authority, again, is wont to be joined with private advan- 
tage ; a case would be if a person who had suffered a great loss at 
the hands of the enemy [566] should obtain the right of collecting 
damage from the enemy's property. The right in that case must 
be defined in accordance with the principles stated above in regard 
to the taking of security. 

VI. Tbe obligation resting upon a person, who has done harm to the 
enemy without orders, is set forth with a distinction 

But if a soldier or any other person, even in a just war, has burned 
houses belonging to the enemy, has devastated fields, and caused 
losses of this character without orders, when, furthermore, there was 
no necessity or just cause, the theologians rightly hold that he is 
bound to make good the losses. I am, however, justified in adding, 
what was omitted by them, ' when there was no just cause ' ; for if 
there is such a cause he will perhaps be answerable to his own state, 
whose laws he has transgressed, but not likewise to the enemy, to 
whom he has done no legal wrong. 

This is not unlike the reply made by a certain Carthaginian to 
the Romans who were demanding the surrender of Hannibal : 

I consider that the question at issue is not whether Saguntum was attacked in accord- 
ance with a decision of an individual or of the state, but whether it was attacked right- 
fully or wrongfully. For the question whether our citizen acted in accordance with 
our decision, or his own, is our business, and to us belongs the punishment of a citizen 
of ours. The subject of discussion between you and us is merely, whether under our 
treaty the attack was permissible. 

1 Plutarch accuses Crassus also on this account [Crassus, ii=p. 543 b] : ' Most of this property 
he amassed through fire and war, taking advantage of the common misfortunes as his greatest means 
of gain.' 



II. i [33. 



Sylvester, 
word 
bellum, 
pt. 1. 



[Livy, 
XXI. 
xviii. 6.) 



CHAPTER XIX 
ON GOOD FAITH BETWEEN ENEMIES 



xxv 

'XIV. 

169 ffj. 



[iii. 5-1 



[=P. 
184 c.] 



[V. xxii. 
63.] 



[Declama- 

tions, 

cclxvii.] 

[cccxliii.] 

[On 

Duties,] 
II. xxix 
[I. xxix. 
140]. 

Letters, ccv 
[clxxxix. 
6], To 
Boniface. 



(V. xxvii. 




I. Good faith is to be kept with enemies of every description 

1. We have said that, in respect to character and extent, what 
is permissible in war is considered either absolutely or with refer- 
ence to a previous promise. The first part of the subject has now 
been finished ; there remains the latter part, which concerns the good 
faith of enemies with one another. 

Silius Italicus, a Roman consul, has well said : 

[567] And best is he 
In military service, who from first to last 
Maintains good faith in wars. 1 

Xenophon in his oration On Agesilaus says : ' So great and excellent 
a thing it is in all men, to be sure, but especially in the case of generals, 
to be and to be considered respecters of good faith.' 

In his fourth speech On Leuctra Aristides says : ' Those who are 
devoted to justice are especially revealed in the maintenance of peace 
and other public agreements.' As Cicero, in fact, rightly declared in 
his On Ends, there is no one who does not approve and praise the 
quality of mind by which not only is no advantage sought but good 
faith is kept even to one's disadvantage. 

2. Public faith, as Quintilian the father remarks, makes truces 
between armed foes and preserves the rights of states that have 
surrendered. In another passage the same author says : ' Good 
faith is the strongest bond in human affairs ; good faith is held in 
sacred esteem between enemies.' Similarly Ambrose also : c There- 
fore it is clear that even in war good faith and justice ought to be 
preserved.' Again, Augustine 2 declares : ' When faith is pledged, 
it must be kept even with an enemy against whom war is being 
waged.' 

Those who are enemies do not in fact cease to be men. But 
all men who have attained to the use of reason are capable of posses- 
sing a right which has its origin in a promise. In Livy Camillus 
says that he had such an alliance with the Faliscans as nature had 
produced. 

1 According to Appian, Civil Wars, IV [IV. ix. 68], Archelaus the philosopher said : ' You 
have sworn to the treaties and have given the pledge of your right hands, which even enemies hold 
inviolate.' Diodorus Siculus, in the Excerpla Peiresciana [p. 342 = XXXII. viij, praises Africanus the 
Younger on account of this virtue. 

1 He treats extensively of the same subject in Letlers, ccxxv [cxxvi]. 
792 



Chap. XIX] 



On Good Faith between Enemies 



793 



3. From the association of reason and speech arises that bind- 
ing force of a promise with which we are dealing. Because we have 
previously said that, in the opinion of many, lying to an enemy is 
either permissible, or free from wrong, it must not be thought that 
this view can be extended with like reason to pledged faith. For 
the obligation to speak the truth comes from a cause which was 
valid before the war, and may, perhaps, in some degree, be removed 
by the war ; but a promise in itself confers a new right. 

Aristotle recognized this distinction when, treating of veracity, 
he said : ' We are not speaking of the person who is truthful in 
agreements and in those matters which have to do with justice and 
injustice. For these belong to a different virtue.' 

4. Of Philip of Macedon Pausanias says : ' No one would 
rightly call him a good general who habitually disregarded oaths, 
broke treaties at every opportunity, and dishonoured good faith 
more than all other men.' Valerius Maximus has this characteriza- 
tion of Hannibal : ' He declared war openly on the Roman people 
and Italy, but he waged war more bitterly against good faith herself, 
having delight in lies and deception as if in noble virtues. For this 
reason it has come to pass that, though otherwise he might have left 
the memory of a noble name, it is doubtful whether he ought to be 
considered an extraordinarily great or extraordinarily bad man.' 
According to Homer the Trojans, troubled in conscience, thus 
accuse themselves : 

Now breaking sacred pledges 
And sworn good faith we fight ; for us a crime is war. 



[VIII. 
vii. 5.] 



[IX. vi. 
ext. 2.3 



II. Refutation of the view that faith ought not to be kept zvith pirates 
and tyrants 

I . Already in our previous discussion we have said that we ought 
not to accept the principles laid down by Cicero : ' We should have 
no relations with tyrants, but rather the most absolute separation ' ; 
again, ' A pirate [568] . is not classed in the number of regular 
enemies ; with him there is no bond of good faith, and he does not 
respect a common oath.' Seneca, too, said of a tyrant : ' When 
the relationship of human rights was broken orT, every bond, that 
bound him to me, was severed.' 

From such a source arose the error of Michael of Ephesus, who in 
his commentary on the Nicomachean Ethics said that the violation of 
the wife of a tyrant did not constitute adultery. 1 By a like error 



[V. x.] 



1 Seneca in the Excerpts [Controversies], IV. vii, says : ' Not thinking it adultery to debauch the 
wife of a tyrant, as it is not murder to kill a tyrant.' Julius Clarus in the section Homiciiium, no. 56, 
believes that adultery could with impunity be committed with a banished woman. 



794 



On the Law of War and Peace 



[Book II 



tPlutarch, 
Pompey, 
xxvii = p. 
633] 



[III. xix. 
t.] 



[III. XXV 

=p. 322.] 

[XXXVI. 

i.] 

LVI [xUii]. 



[Above, 
III. xix. 
2,1.] 
[II. xx. 8.] 



On Dutus, 
III [vi. 
32]- 



certain teachers of the Jews * have made a similar statement about 
foreigners, whose marriages they considered void. 

2,. Nevertheless Gnaeus Pompey finished the war with the Pirates 
in great part by means of treaties, 2 promising to them their lives, and 
places in which they might live without plundering. Sometimes also 
tyrants have restored liberty after having agreed to immunity. In the 
third book of the Civil War Caesar writes that the Roman commanders 
made an agreement with the brigands and deserters who were in the 
Pyrenees mountains. Who will say that, if an agreement of any sort 
had been made, no obligation would have arisen from it ? 

Such agreements do not in fact share in that special community 
of legal obligations which the law of nations has introduced between 
enemies engaged in a formal and complete war. But because their 
authors are human beings they have a common share in the law of 
nature, as Porphyry has rightly maintained in his work On Abstaining 
from Animal Food. From this follows the consequence that the 
agreements must be kept. Thus Diodorus relates that Lucullus kept 
faith with Apollonius, a leader of runaway slaves, and Dio writes that 
Augustus, in order not to violate good faith, paid to the brigand Coro- 
cotta, who had delivered himself up, the reward placed on his head. 

III. Answer to the argument drawn from the fact that such persons 
deserve punishment, and the proof that this is not taken into account 
when they have been treated with 

1. But let us see if a more plausible view can be presented 
than that expressed by Cicero. 

The first consideration is that, as we have elsewhere explained, 
if we take into account the law of nature, atrocious criminals, who do 
not belong to any state, can be punished by any person whatsoever. 
But those who can be punished with the loss of life can also be deprived 
of their property and rights, as the same Cicero rightly said : ' It is 
not contrary to nature to despoil, if you can, the person whom it is 
lawful to kill.' Among the rights of such a person is the right arising 
from a promise. This right, therefore, can also be taken from him 
as a penalty. 

I answer that the reasoning would hold good if one had not 
treated with the person in question as a malefactor ; but if at any 
time we have treated with such a person as such 3 we ought to consider 

1 Rabbi Levi Ben Gerson and Rabbi Salomon, On Levilicus, xx. 10. 

* So there was disapproval of the faithlessness of Didius towards the Celtiberians, who lived by 
plunder [Appian, Spanish Wars, xvi. 100]. 

Terence, Adelphi [II. i. 34 f.], says : 

I own I am a pander, a common bane of youths, 

A perjured wretch, a pest ; yet you I have not wronged. 

On this subject refer to the author, who has written on the terms of peace between the princes and 

order of the [Holy Roman] Empire. 



Chap.XlX] On Good Faith between Enemies 795 

that we have been treating in regard to the remission of the punish- 
ment belonging to his condition. The fact is, as we have said else- 
where, that that explanation must always be assumed which pre- 
vents an act from becoming without effect. 

2. According to Livy, Nabis made an apt reply when Quintius 
Flamini[n]us reproached him with being a tyrant : ' As regards this 
title, I can reply that, whatever I am, I am the same that I was 
when you yourself, Titus Quintius, made the alliance with me.' 
Later he says : ' I had already done these deeds, whatever they are, 
when you made the alliance with me.' He adds : ' If I had changed 
in anything, then I ought to offer an explanation of my lack of con- 
sistency ; but since you are changing, you ought to off er an explana- 
tion of your inconstancy.' 

In an address of Pericles to his fellow-citizens, according to 
Thucydides, there is a passage of similar purport : ' We shall permit 
the allied states to be free, if they were so at the time when the 
treaty was made.' 

IV. The fact that a promise has been extorted through fear presents no 
obstacle, if the fear zvas notfelt as a personal fear by him who made 
the promise 

Next, the objection, which I mentioned elsewhere, may be 
brought forward, that the person who has caused a promise to be made 
through fear is bound to free the promisor, for the reason that he 
has caused the loss unjustly; that is, by means of an action opposed 
to the nature both of human liberty and of an act which ought to 
be free. 

Though we admit that this is sometimes the case, yet it does 
not cover all promises made to brigands. For in order that the 
person, to whom a promise has been made, should be bound to free 
[569] the promisor, it is necessary that he himself should have 
caused the promise by an unjust fear. If therefore any one has pro- 
mised a ransom in order to release a friend from captivity, he will 
be bound to pay ; for the fear did not affect the person who came 
of his own free will to make the agreement. 

V. Or, if an oath has been given, the fact that a promise has been 
extorted through fear presents no obstacle, although in the case of 
a brigand such an oath is violated with impunity so far as men are 
concerned 

There is the further consideration that a person who has made 
a promise under the compulsion of an unjust fear can be obligated 



796 On the Law of War and Peace [Booklll 

if the sanction of an oath has been added. For, as we have said else- 
where, a man is thereby bound not only to man but also to God, 
and in relation to Him fear makes no exception. Nevertheless it is 
true that the heir of the promisor is not held by such a bond alone, 
because, according to the primitive law of ownership, those things 
which belong to the commercial relations of life pass to the heir, 
but these do not include a right sought from God, as such. 
iii. iv. 10 This, again, must be repeated from an earlier statement, that if 

Sl an . y one violates a sworn or unsworn pledge given to a brigand he 

will not on that account be liable to punishment among other nations. 
For because of the hatred of brigands the nations have decided to 
overlook illegal acts committed against them. 

VI. The same rules are applicable in relation to rebellious subjects 

What shall we say regarding wars of subjects against their kings 
and other sovereign authorities? 

That subjects do not have the right to employ force, even though 
1. iv. they have a cause which in itself is not unjust, we have shown else- 

where. Sometimes even the injustice of their cause, or the baseness 
of their resistance, may be so great that they may be punished severely. 
. ertheless, if they have been treated with as one would treat 
deserters or rebels, punishment cannot be inflicted contrary to a 
promise, as we have just stated. 

In their scrupulousness the ancients held that faith must be 

kept even with slaves ; in fact it was believed that the Lacedae- 

Aeiian, monians had drawn down upon themselves divine anger because 

H^t^y] they had killed the Taenarians, their slaves, contrary to agreement. 

vi. vii Also Diodorus Siculus notes that the faith pledged to slaves at the 

[lxxxix]. shrine of the Palici had never been violated by any master. More- 

over it will be possible to nullify here also the exception allowed in 

case a promise was made by reason of fear, if the promise has been 

confirmed by an oath ; so the plebeian tribune, Marcus Pomponius, 1 

kept the promise which had been made to Lucius Manlius under the 

influence of fear, because he was bound by an oath. 

VII. The special difficulty presented by promises made to subjects under 
the right of eminent domain 

At this point, in addition to the difficulties previously met with, 
a special difnculty is presented by the right of passing laws and the 
right of eminent domain over the property of subjects; this right 

1 ' The tribune took the oath and did not practise deception, but gave to the assembly this reason 
for dropping the accusation [action]. No one else has been permitted to restrain a tribune with 
impunity ' ; beneca, On Bcncfits, III. xxxvii. 



Chap. XIX] On Good Faith between Enemies 797 

belongs to the state, and is exercised in its name by the one who 
holds supreme authority. If in fact this right covers all the posses- 
sions of subjects, why does it not cover also the right arising from 
a promise in war ? If this be conceded, it appears that all such 
agreements will be void, and therefore there will be no hope of ending 
a war excepting through victory. 

But, on the contrary, we must note that recourse is had to the 
right of eminent domain, not indiscriminately, but only in so far as 
this is to the common advantage in a civil government, which, even 
when regal, is not despotic. But in most cases it is to the common 
advantage that such agreements be kept ; and what we have said 
elsewhere about the preservation of the existing government applies 
here also. An additional point is that, when circumstances demand 
the enforcement of this right, compensation ought to be given, as 
will be explained later. 

VIII. It is shown also that such promises may be conjirmed by an oath 
of the state 

1. Moreover treaties may be sanctioned by an oath taken not 

only by a king or a senate, but also by the state itself. Thus Lycurgus [Piutarch, 
made the Lacedaemonians take oath to his laws, and Solon the ^f*^' 

7 . xxix=p. 

Athenians ; and in order that the oath might not become invalid on 57 e ; 
account of the change of persons it was repeated annually. xxv=p 

If such repetition is in fact kept up, there will be no necessity 92 b.] 
of withdrawal from the promise, even for the sake of the public 
advantage ; for not only may a s.tate yield its own right, but [570] 
words can be made so clear as to admit of no exception. Valerius v#iii 
Maximus thus addresses Athens : * Read the law which holds you [<*t. 3]. 
bound by oath.' This kind of laws, by which the Roman people 
was itself in conscience bound, as Cicero explains in the speech 
For Balbus, the Romans called ' sacred '. 1 [xv. 35.] 

2. A rather obscure discussion bearing upon this subject is 
found in the third book of Livy, where he says that in the opinion [iil iv. 
of many interpreters of the law the tribunes were inviolable, but not 
likewise the ediles, judges, and decemvirs; yet, if harm should be 
done to any of the latter, an unlawful act was committed. The 
reason for the distinction is that the ediles and the others were 
protected by the law alone ; moreover, what the people had voted 
last prevailed, and so long as the effect of the law lasted no one could 
lawfully act in opposition to it. The tribunes, on the contrary, 
were protected by a public religious obligation of the Roman people ; 
for an oath had been taken which could not be annulled by those 

1 See Manutius, De Legibus, 



6-7.] 



798 



On the Law of War and Peace 



[Book III 



[VI. 
lxxxix. 2.] 



Livv, 
XXXIX 
[xxiii. 6]. 



who had sworn it, without violating religious scruple. Dionysius of 
Halicarnassus says : ' Brutus summoned an assembly and advised the 
citizens to make this magistracy inviolable, not only by law but also 
by an oath, and all so voted.' That is the reason why the law is 
caHed sacred. 

In consequence good men disapproved of the act of Tiberius 
Gracchus x when he removed Octavius from the tribuneship, though 
he declared that the tribunician power received its inviolability from 
the people and not against the people. Therefore, as I have said, 
both a state and a king can be bound by an oath, even in the case 
of subjects. 

IX. Or, promises are binding if a third person, to whom the promise 
is made, enters into the case 

But also a promise will be made with binding force to a third 
person, who has not inspired fear. We shall not investigate how or 
to what extent he may be interested in the promise ; these are subtle 
distinctions belonging to the Roman law. By nature, in fact, it is 
important for all men to have regard for other men. Thus we read 
that by the peace made with the Romans Philip was deprived of 
the right of visiting cruelty upon those Macedonians who had revolted 
from him in war. 2 



I. iii. 
17 fi. 



X. How the political character of a state may be changed 

Further, we have shown elsewhere that states of mixed character 
sometimes exist ; and just as by agreement states may pass from one 
pure form into another, so they may pass also into a mixed form. 
Similarly those who had been subjects may begin to hold sovereign 
power, or at any rate some part of it, together with the free right to 
defend that part by force. 

XI. Fear does notjustify an exception in respect to a war that isformal 
according to the law of nations 

I . A f ormal war, that is a war publicly declared on both sides, 
has not only other characteristics in respect to legal right but also this 
characteristic in particular, that all promises made in the course of the 
war, or for the purpose of terminating it, are valid to the extent that 
they cannot be made void by reason of a fear unjustly inspired, except 
with the consent of the party to whom the promise has been made. 
For just as many other things, though they may not be devoid of 



1 See Plutarch, in his life [Tibcrius Gracchus, xv-xvi= 
Thcre is a similar example in Paruta, Book VI. 



p. 831 d], for this story in full. 



Chap. XIX] 



On Good Faith between Enemies 



799 



fault in some degree, are considered lawful according to the law of 
nations, so also the fear which in such a war x is inspired on both 
sides. 

Unless this rule had been adopted, no limit nor termination could 
have been fixed for such wars, which are extremely frequent. Yet 
it is to the interest of mankind that such bounds be set. This may 
be understood to be that law of war which Cicero says must be 
observed with an enemy. Elsewhere Cicero declared that an enemy 
retains rights in war, obviously referring not only to rights arising 
from the law of nature, but also to certain rights which have arisen 
from the general consent of nations. 

2. From this nevertheless it does not follow that the party 
who has extorted some such promise by an unlawful war can retain 
what he has received without violating the honour and duty of 
a good man, or even can compel the other to hold to the agreement, 
whether sworn to or not. For essentially and in its [571] nature 
the transaction remains unjust. This essential injustice of the action 
cannot be removed except through a new and absolutely free consent. 



On Duiies, 
III [xxix. 
107]. 
Against 
Verres, IV 
[lv. 122]. 



XII. What is to be understood regarding such a fear as the law of 
nations recognizes 

But my statement that the fear inspired by a formally declared 
war is considered lawful ought to be understood of such a fear as is 
not disapproved by the law of nations. 2 For if anything has been 
extorted by the fear of rape, or by terrorizing of any other sort which 
involves violation of pledged faith, it will be nearer the truth to say 
that the case has been brought within the scope of the law of nature ; 
the force of the law of nations does not extend to such a fear. 



XIII. Faith must be kept even with the faithless 

1. I have previously said, in the general treatment of promises, 
that faith must be kept even with the faithless. Ambrose, too, holds 
the same opinion ; he thinks that beyond question the maintenance 
of good faith should be extended even to treacherous enemies, such 
as the Carthaginians, with whom the Romans kept faith inviolably. 
On this point Valerius Maximus remarks : ' The Senate did not 
take into consideration those to whom the obligation was being dis- 
charged.' Sallust, again, says : ' In all the Punic wars, although 
the Carthaginians both in time of peace and in periods of truce had 



II. xiii. 16. 

[On 
Duties, 
I. xxix.] 



VI. vi [3]. 



[Catiline, 
li. 6.] 



1 See the writer as referred to above, on the treaty of peace. 

2 So a promise extorted from a captured ambassador is of no value to the one extorting it ; Mariana, 
XXX [XXX. xii and xix]. 

1569.27 3 H 



8oo 



On the Law of War and Peace 



[Book III 



[Spanish 
Wars. 
x. 6o.l 



VIII. ii 

[VIII.1.2;. 



Cicero, 
Onthe 
Oration, I 
[On the 
Orator, I. 

and 
Brutus 

[xx. 80]. 



[Livy, I. 
xxii. 7.] 



Digest, 

XVII. 
ii.14. 



committed many atrocious wrongs, the Romans themselves never 
took advantage of an opportunity to do such deeds.' 

2. Of the treaty-breaking Lusitanians, whom Sergius Galba 
had deceived by a new treaty and then slaughtered, Appian says : 
1 In avenging perfidy with perfidy he imitated the barbarians in 
a manner inconsistent with the dignity of Rome.' On this charge 
the same Galba was afterward accused by the plebeian tribune Libo. 
In giving an account of the matter, Valerius Maximus says : ' Pity 
and not justice ruled l that trial, since the acquittal, which could not 
have been granted to innocence, was given out of regard for his 
children.' Cato had written in the Origins that Galba ' would have 
been punished if he had not made use of his children and his tears \ 

XIV. Faith does not have to he kept if the condition changes ; and this 
takes place ij the other does not keep his part of the agreement 

At the same time the fact should be recognized that in two ways 
one may be free from breach of faith and yet not do what was pro- 
mised if the condition ceases, and if compensation is given. The 
cessation of the condition does not in reality free the promisor, but 
the result shows that there is no obligation, since this was entered 
into only under the condition. 

To this principle we must refer the case which arises if the other 
party has not fulfilled what he on his part was bound to carry out. 
For the individual items of one and the same agreement seem to be 
related in respect to the two sides after the manner of a condition, 
as if it had been stated in this way : I will do thus and so if the other 
does what he has promised. Thus Tullus, replying to the Albans, 
* calls the gods to witness, which of the two peoples first rejected and 
dismissed the envoys demanding restitution, in order that they may 
visit on that people all the losses of the war '. Ulpian says : ' He 
will not be liable as a partner who has renounced a partnership for 
the reason that a certain condition, on which the partnership was 
formed, is not complied with in relation to him.' For this reason, 
whenever the intent is different, it is usually expressly stated that 
if anything is done contrary to this or that provision the others 
nevertheless will remain valid. 



. 



XV. Faith does not have to be kept in case a just compensation is 
tendered in return 

The origin of compensation I indicated elsewhere, 2 when I said 
that if anything is ours or is due to us, and we cannot otherwise obtain 

1 7Vxx7 (covered) is a typographical error for rexit (ruled). 

1 II. vii. 2. Tertullian, Scorpiace [vi], says : ' No one should object to compensation, in which 
regard i% had alike for favour and for injury.' 



Chap.XlX] On Good Faith between Enemies 801 

it from him who has it or owes it to us, we can accept an equivalent 
amount in something else. From this it follows the more clearlv 
that we may keep what is in our possession, whether it be corporeal 
or incorporeal. Therefore what we have promised will not have to 
be fulfilled if the value involved is no greater than that of our pro- 
pertv which is wrongfully in the possession of the other. 
In the sixth book On Benejits Seneca says : * 

So a creditor often loses his suit to his debtor when on another account he has taken 
more than he tries to secure from the debt. For the judge sits between the creditor and 
the debtor to say, * You have loaned him money ; what then ? . . . You have possession 
of a field which [572] you did not buy ; after an adjustment of values, you, who 
came as a creditor, depart as a debtor.' 



XVI. Faith does not have to be kept in case a just compensation is 
tendered in return^ even if this is on another contract 

The same principle will hold if the party with whom I have 
dealings owes as much or more under another agreement, and I am 
not able otherwise to secure what is due to me. In the law courts, 
as the same Seneca says, 2 different actions are separated, and the 
causes of action are not mixed. But, as noted in the same passage, 
those cases are guarded by definite statutes which it is necessary to 
observe : a law must not be mixed with a law ; we must go whither 
we are led. The law of nations does not recognize those distinctions ; 
in the cases which fall within its scope there is no other hope of 
acquiring one's right. 



XVII. Faith does not have to be kept in case damage has been done 

The same principle will have to be applied if the party who 
insists on the fulfilment of a promise has not carried out his part of 
the agreement, but has inflicted damage. In the passage just cited 
Seneca says : 3 ' A landowner who has trampled down the crop or 
cut down the trees of his tenant has no legal right over the tenant, 
even though the lease is uncancelled, not because he has received 
what had been agreed upon, but because he himself was the cause 
of his not receiving it.' Presently Seneca adds other examples : 
' You have driven away his cattle and killed his slave.' And again : 4 
* It is permissible for me to compare how much each one has assisted 
me, how much he has injured me, and then to declare whether he 
is more indebted to me or I to him.' 

1 Seneca, On Benefits, VI. iv. 4. 2 Ibid., vi, vii [v. 6, 7]. 3 Ibid., iv. * Ibi '.., vi. 

3H2 



802 On the Law of War and Peace [Booklll 

XVIII. Furthermore, faith does not have to be kept when something is 
due as a penalty 

Finally, what is due as a penalty can be taken in lieu of what 
has been promised. This is explained at length in the passage already 
[On Bem- quoted : ' On the one hand favour is due for a benefit, on the other 
lgeance for an injury. Gratitude is not due to him from me, nor 
punishment to me from him ; the indebtedness on both sides is 
cancelled.' Presently Seneca adds : * ' After a comparison has been 
made between the favours and the injuries, I shall see whether any- 
thing more is due to me.' 

XIX. How these principles become applicable in war 

i. Just as in case an agreement has been made between con- 
testing parties, while the suit is in progress, neither the action which 
gave rise to the suit, nor the losses and damages of the suit, can be 
used as an ofTset for what was promised, so, while a war lasts, com- 
pensation cannot be given for what originally caused the war, nor 
for what is customarily arranged in accordance with the laws of war 
among nations. For the nature of the business, that it be not void 
of effect, shows that the agreement was made without consideration 
of the controversies which led to the war. Otherwise, in fact, there 
would be no agreement which could not be lightly set aside. 

To this conclusion I may not inaptly apply the observation of 
the same Seneca, 2 whom I have several times quoted : ' Our ancestors 
accepted no excuse, in order that men might know that good faith 
must by all means be preserved. It was in fact better that even 
a just excuse from a few should not be accepted, than that any sort 
of an excuse should be tried by all.' 

2. What, then, can be used as an oflset to that which was 
promised ? Undoubtedly whatever the other party owes, even under 
the terms of another agreement entered into during the war ; or, 
it may be reckoned as an offset if he has caused damage during a truce, 
or has failed to respect the inviolability of ambassadors, or has done 
anything else which the law of nations condemns between enemies. 

3. Nevertheless the observation should be made that the 
adjustment is arranged between the same parties, and in such a way 
that the right of a third party is not infringed ; yet so that the goods 

"]. of subjects, as we have said elsewhere, are held by the law of nations 
to be liable for the debt which the state owes. 

4. We add this also, that it is characteristic of a noble mind 
to abide by treaties even after an injury has been sufTered. For this 

1 Ibid., vL Jbid., VII. xv [VII. xvi. 2]. 



Chap. XIX] On Good Faith between Enemies 803 

reason the wise Hindu Iarchas praised the king who, although Phiio- 
wronged by an allied neighbour, ' did not withdraw from his sworn f^vT' 
pledge, saying that he had sworn in so holy a manner that he would [Lifeof 
not harm the other even after suffering wrong'. tmmof 

5. Almost all the questions which are wont to arise concerning Tyana, 
the faith accorded to an enemy can be settled if we follow the rules IIL xxL 
already laid down in our discussion not only of the force of promises 11. xi ff. 
of all kinds, or of a special oath, or of a treaty and sponsions, but also 
of the rights and obligations of kings, and the interpretation of 
ambiguous statements. Nevertheless, in order that the application 
of the foregoing principles may be more plain, and that our dis- 
cussion may be extended to cover whatever else is in dispute, [573] 
I shall not hesitate to touch on the special questions which are more 
common and which more generally demand attention. 



[574] CHAPTER XX 

OX THE GOOD FAITH OF STATES, BY WHICH WAR IS ENDED ; ALSO 

ON THE WORKING OF PEACE TREATIES, ON DECISION BY 

LOT, ON COMBAT BY AGREEMENT ; ON ARBITRATION, 

SURRENDER, HOSTAGES, AND PLEDGES 

I. Division of good faith between enemies, according to the order of 
what follows 

[575] Understandings between enemies rest upon a promise 
expressed or implied. 

An express promise is either public or private. If public it is 
imputed either to the supreme authority or to subordinate powers. 
That which is imputed to the supreme authority either puts an end 
to war or maintains its force while the war lasts. 

Among the factors which terminate a war some are looked 
upon as principal, others as accessory. Those are principal which 
themselves end the war by their own action, as treaties, or by the 
consent to refer to something else, such as the drawing of lots, the 
issue of combat, or the decision of an arbitrator. Of the last three 
the first rests on pure chance, while the other two combine chance 
with strength of mind or body, or with capacity of judgement. 

II. In a monarchy the right to make peace belongs to the king 

s<* n. Those who have the right of initiative in conducting a war have 

the right to enter into treaties for the purpose of ending it. Each, 
in fact, is the manager of his own affairs. From this it follows that 
in a war which is public on both sides the right to end it belongs 
to those who have the right to exercise supreme power. In a true 
monarchy, therefore, this will belong to the king, 1 provided also the 
king has unrestricted power. 

III. What if the king is an infant, insane, a captive, or in exile ? 

1 . A king who is of such an age that he does not possess maturity 
of judgement (in some kingdoms such an age is defined by law, else- 
where it will have to be determined by a more probable estimate) 
or a feeble-minded king cannot make peace. 

The same principle will apply to a king in captivity, 2 provided 
he possesses a kingly authority which had its origin in the consent 

' mana, XXI. i. 
See Guicciardini, Books XVI and XVIII ; more than a single reference. 

804 



xv. 3 



Seel. 



Chap. XX] 



On Good Faith in Ending War 



805 



of the people. It is, in fact, not credible that sovereignty was con- 
ferred by a people on such terms that it could be exercised by one 
who is not free. Therefore in this case also not the undivided sove- 
reignty indeed, 1 but the exercise, and, as it were, the guardianship 
of it, will belong to the people, or to the one to whom the people 
has entrusted it. 

2. Nevertheless, if a king even in captivity has pledged anything 
of his own private possessions, the pledge will be valid, in accordance 
with the principle set forth in what we shall state concerning private 
agreements. 

But if a king shall be in exile, 2 will he be able to make peace ? 
Surely so, if it be established that he is not living under constraint ; 
otherwise his condition will differ too little from that of a captive, 
for there are captives also who are loosely guarded. Regulus refused 
to give his opinion in the senate, saying that he was not a senator 
so long as he was bound by an oath to the enemy. 

IV. In an aristocracy or a democracy the right of making peace belongs 
to the majority 

In accordance with what we have said elsewhere, in aristocratic 
or democratic governments the right of making treaties will belong 
to the majority ; in the former case, the majority of the public 
council, in the latter, the majority of the citizens who according to 
custom have the right to vote. 

Accordingly, treaties so made will be binding even on those who 
have voted against them. Livy says : ' When a treaty has once been 
voted it will have to be defended as a good and advantageous treaty 
by all, even by those who were previously opposed to it.' Dionysius 
of Halicarnassus states the case thus : ' What the majority has voted 
must be obeyed.' Appian says : ' All, without admitting any excuse, 
are bound to obey the decree.' Says Pliny : ' All had to observe 
what the majority had approved.' Peace, moreover, is of advantage 
also to those whom it obligates, if they so wish. 

V. Now the sovereignty, or a part of the sovereignty, or the property 
of the realm may be validly alienated for the sake of peace 
1. Let us now see what the things are which may be made 

subject of a treaty. 

1 Arumaeus in his Discourses on ihe Golden Bull says : ' Rudolph of the Palatinate had fled to 
England in fear, and Henry of Mayence had been expelled by force from Treves ; yet they did not 
lose their votes as Electors/ 

2 Lucan says [V. 28 f.] : 

And while Camillus dwelt in Veii's walls, 
There too was Rome. 
See Chassanaeus in the Catalogus Gloria Mundi, pt. V, consid. 89 [49]. 



Cicero, 
On Duties, 
II [III. 
xxvii.ioo]. 



II. v. 17. 



XXXII 

[xx. 6]. 

XI [Ivi]. 



VI [Poly- 
bius, V. 
xlix. 7]. 
Letters, 

VI.xiii[ 4 ]. 



Vazquez, 
Cont. III., 

I. iv, cites 
many, 
and v. 
See above, 

II. vi. 3 ff. 



8a6 On the Law of War and Peace [Booklll 

Kings, such as the majority now are, are not able to alienate by 
treaty either the whole sovereignty or a part of it, since they hold 
their royal authority not as a patrimony, but as if in usufruct. [576] 
Even before they receive the kingship, while the people are still 
superior to them, such acts can be rendered entirely void for the 
future by a public statute, so that they cannot give rise to any obliga- 
tion in the king's interest. And it is to be believed that the people 
have so willed ; for otherwise, if the act were binding on the con- 
tracting party to his interest, the goods of subjects might be taken 
for the king's debts, and it would follow that the provision against 
the alienation of the sovereignty would be in vain. 

2. In order, therefore, that the undivided sovereignty may be 
transferred in a valid manner, the consent of the whole people is 
necessary. This may be effected by the representatives of the parts 
which are called the estates. 

In order to validly alienate any part of the sovereignty there is 
need of a twofold consent, that of the whole body, and in particular 
the consent of that part of which the sovereignty is at stake, since 
without its consent it cannot be separated from the body to which 
it has belonged. Yet in case of extreme and in other respects un- 
avoidable necessity the part itself will probably transf er the sovereignty 
o.ver itself in a valid manner without the consent of the whole people, 
because it is to be believed that that power was reserved when the 
body politic was formed. 

3. In patrimonial kingdoms, however, there is nothing to 
prevent a king from alienating his crown. Yet it may happen that 
such a king would not be able to alienate a part of the sovereignty, 
if indeed he has received the kingdom as his property on the con- 
dition of not dividing it. But the property described as royal may be 
included in the patrimony of the king in two ways, either separately, 
or indivisibly united with the kingdom itself. If included in the 
latter way, it may be transferred, but only with the transfer of the 
crown itself ; if separately, it may be transferred separately. 

n. xiii 4. But kings who do not hold their kingship in patrimony seem 

[ii. vi. i 3 i. h ai -dly t0 nave Deen granted the right of alienating the property 
of the realm, unless this right plainly appears as arising from some 
early law, or has never been considered contrary to custom. 

VI. How far the people, or his successors, are bound by a peace made 
by a king 
11. xiv. We have elsewhere stated how far the people, and at the same 

V4zque*, time also the successors of the king, are bound by his promise, to 



afoprn^n- 



wit : so far as the power of creating binding obligations was included 
L*vTno. 9. m his sovereignty. This ought neither to be given unlimited range, 



Chap. XX] 



On Good Faith in Ending War 



807 



nor to be confined within too narrow limits, 1 but ought to be so 
understood that what is based on good reason may be accepted as 
valid. 

The case will plainly be different if a king is at the same time the 
absolute master of his subjects, and has received a sovereignty akin 
to that of a household rather than to that of a state. Such are kings 
who have reduced to slavery people conquered in war ; or a king 
who does not indeed have ownership of persons but of their pro- 
perty, as Pharaoh in the land of Egypt, in consequence of purchase ; 
and others, who have taken strangers into their private possession. 
For here the right added to the royal power establishes the validity 
of that which could not be maintained as valid by the right of the 
king alone. 

VII. In arranging peace the property of subjects can be given up for 
the sake of the public advantage, but with the obligation of making 
good the loss 

1 . This question also is f requently discussed : in the eff ort to 
secure peace, what conclusion regarding the property of subjects 
may be adopted by kings who have no other right over the property 
of their subjects 2 than that inhering in the royal power ? 

I have said elsewhere that the property of subjects belongs to 
the state under the right of eminent domain ; in consequence the 
state, or he who represents the state, can use the property of sub- 
jects, and even destroy it or alienate it, not only in case of direct 
need, which grants even to private citizens a measure of right over 
others' property, but also for the sake of the public advantage ; and 
to the public advantage those very persons who formed the body politic 
should be considered as desiring that private advantage should yield. 

2. But, we must add, when this happens, the state is bound 
to make good at public expense the damage to those who lose their 
property ; and to this public levy the person himself who suffered 
the loss will contribute, if there is need. 

The state, furthermore, will not be relieved of this burden if 
perchance it is not equal to the payment at the time ; but whenever 
the means shall be at hand the obligation will reassert itself as if 
merely held in suspense. 

[577] VIII. What in regard to property already lost in war ? 

I do not admit without modification the statement of Fernando 
Vazquez, that the state ought not to take upon itself the loss already 

1 See Reinkingk, Book I, class 111, chap. v, no. 30 [I. v. iii. 19]. See also above, II. xiv. 7 and 12. 

2 Gail, II, obs. 57. 



Above, 
III. viii. 2. 



Vazquez, 

I. v [15]. 

Romanus, 

Consilia, 

310. 

Sylvester, 

word 

bellum, 

1. 43- 



Cont. IIL, 

III. iii. 

end 

[I. iv. end] . 



XVII. li 

52- 4 



808 On the Law of War and Peace [Booklll 

caused by a war, for the reason that the law of war permits such 
damages. For that law of war has reference to other peoples, as 

111. vi. I have explained elsewhere, and in part applies to the relationships 

of enemies but not to those of citizens with one another. Since 
citizens of a state are associates, it is right that they should share 
the common losses which are suffered by reason of their association. 

Digest, Obviously, also, the municipal law may expressly provide that there 

shall be no right of action against the state for property lost in war, 
to the end that each individual shall defend his property with greater 
energy. 

IX. No distinction is here made between property acquired under the 
law of nations and under the municipal law 

Some make a broad distinction between property which belongs 
to citizens by the law of nations and that which belongs to the same 
persons by municipal law ; in consequence they grant to the king 
a more unrestricted right over property owned under the law of 
nations, even to the extent of taking it away without cause and 
without compensation, while they admit no such right in the case 
of property held by the law of nature. 

This distinction is wholly erroneous, for ownership, no matter 
from what cause it has arisen, always has effects originating in the law 
of nature ; consequently it cannot be taken away except as the result 
of causes which are inherent in ownership by its very nature, or 
arise from an act of the owner. 

X. From the point of view of foreigners puhlic advantage is presumed 

Now this doctrine, that the property of individuals should not 
be given up except for the public advantage, has reference to the 
king and his subjects, just as the other doctrine regarding com- 
pensation for loss has reference to the state and individuals. The 
act of the king is in fact sufficient for foreigners, who make agree- 
ments with him, not only by reason of the presumption established 
by the dignity of his person, but also in accordance with the law of 
111 lj nations, which permits the property of subjects to be made liable by 

the act of the king. 

XI. General rule for the interpretation of peace covenants 

1. In the interpretation of peace covenants the observation 

11 xv 12 should be made that, as we have previously stated, the more favour- 

able a condition is, the more broadly it is to be construed, while the 



Chap. XX] 



On Good Faith in Ending War 



809 



further a condition is removed from a favourable point of view the 
more narrow is the construction to be placed upon it. 

If we have in view the law of nature, the most favourable con- 
dition seems to rest on this principle, that each shall obtain what 
belongs to him, which the Greeks have expressed bv eKaorrov ^.iv 
tol iavrov ; hence the interpretation of ambiguous clauses ought to be 
directed to the end that the party who had a just cause of war should 
obtain that for which he took up arms, and should likewise recover 
for damages and costs, but that he should not also recover anything 
by way of penalty, for that would arouse more hatred. 

2. Since, however, it is not customary for the parties to arrive 
at peace by a confession of wrong, in treaties that interpretation 
should be assumed which puts the parties as far as possible on an 
equality with regard to the justice of the war. 

This is usually accomplished in one of two ways ; either the 
possession of property, which has been disturbed by war, is adjusted 
in accordance with the former right of ownership x [status quo ante 
bellum\ the expression used in the speech of Menippus where he 
discusses the difrerent kinds of treaties ; or, things remain as they 
are [uti possidetis\ and this the Greeks call ' holding what they 
have '. 



Livv, 
XXXIV 

[lvii. 8]. 



XII. In doubtful cases it is believed that the understanding is that 
things remain as they are ; how this ought to be interpreted 

1. Of the two ways mentioned, in case of doubt the presump- 
tion is in favour of the second, because it is easier and does not intro- 
duce a change. Hence the rule laid down by Tryphoninus, that in 
peace the right of postliminy applies only to those captives who have 
been expressly mentioned in the treaty, as we have stated above, 
where it was shown by sound arguments that Faber's emendation of 
the text was correct. So also deserters will not be surrendered unless 
that is in the agreement. For we receive deserters by the law of 
war ; 2 that is, according to the law of war we are allowed to admit 
and enrol on our side the one who changes allegiance. Under such 
an agreement the other things remain in the hands of the possessor. 

2. In such cases, however, the word possession is understood 
not according to municipal law but according to the law of nature. 
For in wars the fact of possession suffices, and nothing else is con- 
sidered. Moreover we have said that lands are so held if they have 
been enclosed by fortifications ; for temporary possession, as in the 

1 See Paruta, Book V. 

2 See above, III. i. 22, In peace this agreement is generally made, that deserters shali not be 
received ; see the peace of Justinian with Chosroes in Menander Protector [frag. n, p. 10, edit. Dindorf], 



Digest, 
XLIX. 
xv. 12. 

Above, 
III. ix [4]. 



Dig. XLI. 
i. 51. 



Above, 
III. vi. 4. 

Decio, 
Consilia, 
III. lxxiv. 



8io 



On the Law of War and Peace 



[Book III 



[Ontht 
Croxtm, 
xviii.26 = 
P 234] 

Above, 
III. vii. 4 . 



XXXIII 

[xiii. 12]. 



case of a stationary camp, is here not to be taken into account. [578] 
In his speech for Ctesiphon Demosthenes says that Philip hastened 
to seize what places he could, knowing that, as matters stood, after 
the conclusion of peace he would retain what he held. 

Incorporeal possessions are not retained except through the things 
to which they belong, as the servitudes of lands, or through the 
persons who possess them, provided that the rights do not run with 
land which formerly belonged to the enemy. 

XIII. What if an agreement has heen made, that all things are to be 
restored to the condition in which they were hefore the war ? 

In the first kind of agreement, in which possession disturbed 
by the war is restored, we must note that the last possession, 
which existed before the war, is meant ; nevertheless with the under- 
standing that private persons who have been dispossessed may 
institute legal proceedings either by possessory action or by a claim 
for damages. 

XIV. In such cases those who previously were free and of their own 
accord became subject to another are not restored 

But if any free people has of its own will yielded to one of the 
belligerents, restitution will not be applicable to it ; for restitution 
applies only to those things which are accomplished by force, or fear, 
or in other ways through deceit permissible only against an enemy. 
So when peace was made among the Greeks the Thebans retained 
Plataea, 1 saying ' that they held that place not by force, nor by 
betrayal, but by the free choice of those to whom it belonged . 
With equal right Nisaea remained in the possession of the Athenians. 
Titus Quinctius made use of the same distinction in relation to the 
Aetolians, saying ' That is the rule for captured cities ; of their own 
accord the cities of Thessaly came under our sway '. 



XV. In case of doubt damages caused by war are considered as remitted 

If no other agreement has been made, in every peace it ought 
to be considered settled that there shall be no liability on account 
of the damages which have been caused by the war. This is to be 
understood also as to damages sufTered by private persons ; for such 
damages also are the result of war. In case of doubt it is presumed 
that the belligerents intended to make such an agreement that 
neither would be condemned as guilty of injustice. 



Thut 



1 This passage is from Thucydides, V [V. xvii] ; a similar one had preceded in III [III. liil : 
W Plataea ought not to be given back, since the men of that city had yielded of their own accord.' 



Chap. XX] 



On Good Faith in Ending War 



811 



XVI. The principle stated does not apply to ivhat was ozved to individuals 
before the zvar 

Nevertheless we ought not to consider that debts, which were 
owed to individuals at the outbreak of war, have been cancelled. 
For cancellations of debts are not obtained by the law of war, but 
their collection has only been hindered by the war. When, therefore, 
the hindrance has been removed, they retain their full force. Although 
we should consider that no one ought easily to be deprived of the 
rights which he possessed before the war (for, as Cicero rightly says, 
commonwealths and states were established especially on this account, 
that individuals might be secure in holding what belonged to them), 
yet this must be understood in the case of those rights which arise 
from the inequality of things. 

XVII. In case of doubt also punishments, which were publicly due 
before the war, are considered as remitted 

The same principle does not apply to the right to inflict punish- 
ment. 1 For this right, in so far as it concerns kings or peoples, ought 
to be considered as held in abeyance, from fear that the peace will 
not be a perfect peace if it leaves the old causes for war. 

Wherefore acts not known will also here be included under the 
general terms, as the case of the Roman traders who, as Appian 
relates, were drowned by the Carthaginians without the knowledge 
of the Romans. Dionysius of Halicarnassus declares that the best 
reconciliations are those which do away with the anger and the 
remembrance of the injuries. In his Plataic Oration Isocrates says : 
' In peace it is not fitting to follow up former wrongs.' 

XVIII. What of the right of private persons to infiict punishments ? 

As to the right of private persons to inflict punishment, the 
reason is not so strong for thinking that it should be heldin abeyance, 
because it can be enforced through the courts without war. Never- 
theless, since this right is not so clearly ours as that which arises 
from inequality, and punishments always cause hatred, a slight 
extension of the scope of the words will suffice to suggest that this 
right also may be understood to have been given up. 

XIX. A right, which was publicly alleged before the war, but was in 

dispute, is easily understood to be in abeyance 

What I have said, that a right which existed before the war 
ought not easily to be considered annulled, should be firmly main- 



Decio, 
Cons., lxi. 



On Duties, 
II [xxi. 
73]- 



[Punic 
Wars, i. 5.] 

[III. viii. 

4-] 

[xiv = p. 
299 B.] 



Gail, De Arrestis, chap. xiv, no. 7. 



812 On the Law of War and Peace [Booklll 

tained with respect to the rights of individuals ; [579] but as to 
rights of kings and peoples it is easier to understand that some con- 
donation has occurred, if only statements, or not improbable in- 
ferences, are in evidence. This is above all the case if the right in 
question was not ciear, but had been in dispute. It is, in fact, the 
part of kindness to believe that the right was suflered to fall into 
abeyance in order that the seeds of war might be eradicated. 

iii [ix. 3]. The same Dionysius of Halicarnassus, whom I quoted above, 

says : ' We ought not so much to consider the renewing of our friend- 
ship for the present, as to take care that we may not be involved in 
war a second time ; for we have come together for the purpose not 
of putting off the evils but of putting an end to them.' The latter 

[xxv=p. part of this statement was taken almost word for word from the 

164 c.] oration of Isocrates On Peace. 

XX. Tbings captured after the making of peace must be restored 

It is well established that things which have been captured 
after the conclusion of a treaty of peace must be restored. The right 
of war had, in fact, already expired. 

XXI. Some rules bearing upon the agreement to restore things captured 
in war 

Aidati, In treaties which deal with the restitution of things captured in 

v"x^ 5a ' war > nrst > those provisions which apply equally to both sides ought 
to be interpreted more broadly than those which are one-sided. 
Again, the provisions that are concerned with persons are construed 
more favourably than those that treat of things. Among provisions 
treating of things those that deal with land are construed more 
favourably than those dealing with movables, and those dealing with 
public property more favourably than those that treat of private 
property. Also among provisions treating of private possessions those 
which order the return of things possessed under a saleable title allow 

cicero, greater latitude than those possessed under a burdensome title, as 

n*[xxiir 5 ' property held under bills of sale or as dowry. 

1]. 

XXII. Regarding income 

A person to whom a grant of property is made on the conclusion 

of a peace is entitled to receive the income of it also from the time 

Appian, of the grant, but not before that time. This principle was rightly 

^ maintained by Caesar Augustus against Sextus Pompey who, after 

the Peloponnesus had been granted to him, at the same time claimed 

also the taxes which were due for the previous years. 



1 See Guicciardini, Book V [on the contest for Capitanata between the French and Spaniards ; 
the former insisted it was a part of the Abruzzi, the latter, of Apulia]. 

2 See Albert of Strassburg. 

3 Plautus, The Persian [line 586] : 

The merchandise is yours, so you must price it. 
In a matter of this sort the one who is more powerful generally speaks first ; but when terms are being 
sought the one who is weaker is wont to speak first. Plutarch, Sulla [xxiv=p. 467 c], says : ' It 
is their part to speak first who have need of peace ; it is sufficient for the victor to be silent.' 



tilian, 
Declama- 



Chap.xx] On Good Faith in Ending War 813 

XXIII. On the names of regions 

The names of regions must be accepted according to the usage 
of the present time, 1 and according to the usage of experts rather 
than of the common people ; for such matters are usually treated 
by experts. 

XXIV. Concerning reference to a former treaty ; and concerning him 
through zohom the failure to perform has come 

The following rules also are of frequent application. As often 
as reference is made to a former or ancient treaty, the qualifications 
or conditions of the former agreement are in each case considered 
as repeated. Also the party, who was willing to do an act, must be Quin 
considered as having done it, if he was hindered from doing it by 
the other party with whom the dispute occurred. fons, 

ccxlviii 
[cccxliii]. 

XXV. Concerning delay 

However, the statement of some writers, that delay for a brief 
period is excusable, is not true unless an unforeseen necessity has 
proved a hindrance. 2 It is, in fact, not strange that some canons 
favour the excusing of such delay, since it is their duty to influence 
Christians to that view which is consistent with love for one another. 
But in this investigation concerning the interpretation of treaties we 
are not now inquiring what is the better course nor what religion 
and honour demand of each, but to what limit the application of 
a principle, based wholly on that right, which we have called legal, 
can be carried. 

XXVI. In case of doubt that interpretation should be adopted which is 
contrary to the interest of the party that made the terms 

In case the meaning is doubtful, an interpretation is preferably 
to be adopted contrary to the interest of him who dictated the 
conditions, 3 because ordinarily he belongs to the stronger party. 
Hannibal says that the dictation of the terms of peace belongs to the [Livy, 

XXX. 



xxx. 24.] 



814 On the Law of War and Peace [Booklll 

man who grants peace and not to the one who asks for it. So likewise 
Dig. ii. an interpretation is adopted against the seller ; for he has himself 
xiv. 39. tQ D ] ame f or not speaking more plainly. 

The other party, however, could rightly accept, to his own 

advantage, a condition which admitted of several interpretations. 

[580] This is in harmony with what Aristotle said : c Where friend- 

ship exists for the sake of advantage, there the advantage of the one 

who receives is the measure of what is due.' 

XXVII. Distinctions are drawn between furnishing a new cause for 
war and breaking a treaty 

Of daily occurrence is the discussion of the question, when 
should a treaty of peace be considered broken ? This the Greeks call 
a ' breach of faith '. It is, in fact, not the same thing to furnish 
a new cause for war and to break a treaty ; but there is a great differ- 
ence as regards both the penalty incurred by the one at fault and 
the relieving of the innocent party from his pledge in other matters. 

A treaty of peace is broken in three ways : by acting either 
contrary to what is involved in every peace, or against what was 
expressly stated in the treaty of peace, or against what ought to be 
understood from the nature of every peace. 

XXVIII. How a treaty of peace may be broken by acting contrary to 
what is contained in every peace 

A violation of what is involved in every peace will take place if 
a warlike attack is made, especially when no new cause is presented. 
If the fact can be allegecj with probability, it is better to believe 
that the wrong was committed without faithlessness than with it. 
[i. cxxiii.] This statement of Thucydides hardly needs mention : ' Not those 
who ward off force with force break the peace, but those who are 
the first to make the attack.' * 

Having established this point, we must see by whom, and against 
whom, the armed attack which breaks the peace is made. 

1 See Ammianus Marcellinus, beginning of Book XXIX [XXIX. i. 3]. He speaks thus of the 
Romans : 4 Intentionally retreating, that they might not be the first to do hurt to any one of the 
enemy with the sword and be judged guilty of having broken the treaty, they joined combat only 
under the stress of absolute necessity.' 

According to Procopius, Persian War, Book II [II. iii = p. 94 b1, the Armenians said in their speech 
to Chosroes : * They do not destroy peace who are first in arms, but they who, in time of peace, are 
first detected plotting against the others.' In the same author, Vandalic War, Book II [II. xi = 
p. 259 c], the Moors say : [590] ' They do not break treaties of peace who have been oppressed by 
mjuries and after making complaint openly transfer their allegiance to others, but they who do 
violence to those that wish to live as alhes. If under such conditions any take their possessions and 
go over to the other side, they do not make God thcir enemy ; but those do who seize the property 
of othen and force the owners into the perils of war.' 



Chap.XX] On Good Faith in Ending War 815 

XXIX. What if allies have made an attack ? 

I see that there are some who think that if those, who have been 
allies, make such an attack, the treaty of peace is broken. And I do 
not deny that an agreement can be made on such terms, not, to be 
sure, that one people should be subject to punishment for another's 
act, but that peace should not seem to have been finally made, but 
should remain subject to a condition depending partly on intention, 
partly on chance. 

We ought not, however, to believe that a peace has been made 
in this way, unless the fact is perfectly clear. Such an arrangement 
is irregular, and not in harmony with the common desire of those 
who are making peace. Therefore those who made the attack without 
the aid of others will be responsible for breaking the treaty, and the 
right to wage war will exist against them and not against the others. 
In opposition to this view the Thebans formerly spoke against the Pausanias, 
allies of the Spartans. IX [i - & 

XXX. What if subjects have so acted ? Hozv their action should be 
considered as approved 

If subjects do anything by armed attack without public orders, 
it will be necessary to see whether the act of individuals can be said 
to have been publicly approved. 

From what we have said above, it can easily be understood that 11. xxi. 
to show public approval three requisites are necessary : knowledge of 2 ff - 
the act, power to punish, and neglect to punish. Knowledge is 
shown by the fact that the acts are manifest, or have been made 
subject of complaint. Power is assumed, unless the lack of it is 
apparent. Neglect is evidenced by the expiration of the period of 
time ordinarily taken for the punishment of crimes in each state. 
Such neglect is equivalent to a decree ; and in this sense the state- 
ment of Agrippa in Josephus should be taken, ' that the king of the [jewish 
Parthians would consider the peace broken if his subjects should take ar yi 
up arms against the Romans '. 

XXXI. What if subjects should engage in warfare under the command 
of others ? 

The question is frequently raised, whether the rule just given 
holds if subjects do not take up arms on their own account but serve 
under others who are carrying on war. Certainly accordiiig to Livy vn [xx. 
the people of Caere, in offering an excuse for themselves, say that 5] - 
their citizens did not serve with the public consent. Also the Rhodians Geiiius, 

r VII. 111 

had the same defence. [vi. ut. 5]. 

1569.27 3 1 



rii.9]. 



816 On the Law of War and Peace [Booklll 

It is nearer the truth to consider that such service ought not 

to be permitted, unless it is made apparent, by plausible arguments, 

that a different point of view has been adopted. This sometimes 

happens now in accordance with the ancient example of the Aetolians, 

xvii >. who held it right to take plunder from a plunderer. 1 Polybius 2 

5 *' says that the force of this custom was that, though they were not 

themselves at war, but others, their friends or allies, were warring, 

it was nevertheless [581] lawful for Aetolians without a public 

decree 3 to serve on both sides and to take plunder from both. Of 

xxxii. the same people Livy says : ' They permit their young men to serve 

against their own allies, omitting merely the public authorization ; 

and often opposing armies have Aetolian auxiliary troops on both 

sides. Formerly the Etruscans, though refusing aid to the Veientes, 

did not hinder any of their youth from going as volunteers to that 

war.' 

XXXII. What if harm has been done to subjects ? Herein a distinction 
is made 

1. Again, a treaty of peace ought to be considered broken, 
not only if an armed attack is made on the whole body of the state, 
but also if such an attack is made on its subjects, of course without 
a new cause. For peace is made in order that all subjects may be 
safe. Peace, in fact, is an act of the state on behalf of the whole 
body and on behalf of its parts. Even more, if a new cause arises, 
by the peace it will be permissible for them to defend themselves 

Digest, and their property. For, as Cassius says, it is natural to repel arms 

with arms. Consequently among equals it is not to be thought easy 
to give up this right. But it is not permissible to punish, or to recover 
stolen property, by force, except after judgement has been refused ; 
for these matters admit of delay, while self-defence does not. 

2. But if subjects commit wrongs so continuously, 4 and in 
a manner so contrary to the law of nature, as to warrant the belief 
that they are acting wholly without the approval of their rulers, and 
if they cannot be brought into court, as in the case of pirates, it will 
be lawful both to recover property from them and to take vengeance 
on them, as if on persons who had been surrendered to us. But it 
is in truth contrary to the conditions of peace on that account to 
attack others who are innocent. 

1 Plautus, Truculentus [line 567] : 

Plunder from plunder I take. 
1 See the same author in the Excerpla [Excerpta de Virtutibus et Vitiis, 6= IV. iii. 1-2J. 
* Agathias, Book IV [IV. xiiil, tells the same of the Sabirian Huni in his own time. 
4 So Augustus decided on behalf of llerud ununst Svllaeus: Tosephus, lAnliquilies of the lews,] 
XVI. xvi [XVI. x. 8J. } J ' J J J 



XI. II 
xvi.i.i7, 



Chap. XX] 



On Good Faith in Ending War 



817 



XXXIII. What if harm has heen done to allies ? Herein likewise 
a distinction is made 

1. Also an armed attack made upon allies breaks a treaty of 
peace, 1 but only an attack upon those allies who have been included 
in the terms of peace, as I showed in examining the controversy over 
Saguntum. On this principle the Corinthians insisted in the speech 
which is found in the sixth book of Xenophon's Affairs of Greece : 
1 We have all taken oath to all of you.' 

Further, if the allies themselves have not made the compact, 
but others for them, the same rule will nevertheless have to be applied, 
after it is fully settled that those allies have ratified the treaty of 
peace. For so long as it is still uncertain whether they wish to 
ratify it they are to be considered as enemies. 

2. The case is different with other allies, such as those united 
by ties of blood and marriage, who are neither subjects nor named 
in the treaty of peace. Yet it does not follow, as I have said above, 
that war cannot be undertaken on that account, but it will be a war 
from a new cause. 

XXXIV.- Hozv a treaty of peace may he hroken hy acting contrary to 
what has heen stated in the peace terms 

As I have said, a treaty of peace is broken also by acting contrary 
to what has been stated in the peace terms. Under action, moreover, 
is included the failure to do what one should, and when one should. 

XXXV. Whether a discrimination ought to he made hetween the articles 

of the treaty of feace 

I shall not here admit a difTerentiation of the terms of peace 
into those that are of greater and those that are of less importance. 
For everything that has been included in the treaty of peace ought 
to seem important enough to be kept. Goodness, nevertheless, and 
especially Christian goodness, will more easily pardon lighter faults, 
especially if repentance is added, so that the following is in point : 

Who sin regrets, is almost innocent. 
But in order that peace may be still more securely safeguarded it 
will be wise to add to the topics of minor importance 2 the provision 
that the treaty of peace is not to be broken by anything done in viola- 
tion of these, or that arbitration should be tried before it is per- 
missible to take up arms, as was provided, according to Thucydides, in 
the Peloponnesian treaty. 

1 De Thou, Book LXV, year 1578. There is also something pertaining to this in Haraeus, in his 
history of Brabant, vol. II, for the year 1556. 

2 See an excellent example in the peace treaty of Justinian, between Justinian and Chosroes. 
Menander Protector has it [frag. n, p. 10, edit. Dindorf]. 

\ I 2 



II. xvi. 13. 
[VI. v. 37.] 



Caepolla, 

Consilia, 

dcxc. 

Decio, 

Consilia, 

dxxxi. 



Seneca, 
Agamem- 
non [243]. 



See above, 
II. xv. 15. 



VII [V. 
lxxix]. 



*3-i 



818 On the Law of War and Peace [Booklll 

XXXVI. What if a penalty has been added ? 

And I am fully of the opinion that this seems to have been the 
intention, if any special penalty [582] has been added ; * not 
because I do not know that a contract can be so made that the one, 
to whom the injury has been done, may have a choice, whether he 
prefers the penalty or withdrawal from the agreement, but because 
the nature of the business requires what I have said. This principle 
indeed is agreed upon, and has both been stated by us above and 
approved by the authority of history, that a treaty of peace is not 
broken by the party who f ails to stand by it after the other has broken 
it ; for he was only bound conditionally. 

XXXVII. What if necessity has hindered fulfilment ? 

But if necessity is the cause why one party has not fulfilled his 
promise, as, for example, if the thing has been destroyed or lost, or 
the act rendered impossible by some chance, the treaty of peace will 
not be considered as broken; for, as I have said, a treaty is usually 
not dependent on a chance condition. But the other party will 
have his choice, whether he prefers to wait, if there is any hope 
that the promise may be carried out later, or to receive an equivalent 
in estimated value, or to be freed from mutual engagements corre- 
sponding with that item or of equal value. 

XXXVIII. Peace continues, if the one injured so desires 
See above, Certainly even after a broken agreement it is within the power 

[13'ffT ^ ^ injured party to preserve peace, as Scipio did after many 
treacherous acts of the Carthaginians ; no one frees himself from an 
obligation by acting contrary to it. And if the provision has been 
added, that the treaty of peace should be considered broken by such 
an act, this provision ought to be considered as added merely for the 
benefit of the innocent party, in case he wishes to take advantage of it. 

XXXIX. How peace may be broken by acting contrary to what belongs 
to the special nature of every peace 

Lastly we said that a treaty of peace is broken by doing what is 
contrary to the special nature of the peace. 

XL. What falls under the term friendship ? 

1. Accordingly, acts that are contrary to friendship break a 
treaty of peace which was entered into under the terms of friendship. 

1 As in thc treaty of the Goths with the Franks ; see Procopius, Gothic War, I [I. xii=p. 342 b]. 



Chap. XX] 



On Good Faith in Ending War 



819 



For whatever the duty of friendship by itself demands of other men 
ought by the right of the agreement to be performed in such a case 
as this also. To treaties of friendsKip (since Pomponius teaches us 
that there is also a kind of treaty not made for the sake of friendship), 
and not to every kind of treaty, I refer many matters arising out of 
injuries inflicted without force of arms, and insults, which are fre- 
quently discussed by legal experts ; and to such treaties I refer the 
statement of Cicero : ' If any wrong has been committed after a return 
to friendly relations, it should be thought not due to neglect but 
a violation, and imputed not to imprudence but to faithlessness.' 
But in such cases also the motive of ill-will should as far as possible 
be eliminated from the act. 

2. Consequently, if a wrong has been done to a person inti- 
mately connected with the party with whom the peace was made, 
or to a subject, it will not be considered as done to the party himself 
unless the wrong was done openly as an affront to him. 

This principle of natural justice is followed by the Roman laws 
in cases of cruelty in the treatment of slaves. Adultery, also, and 
violation of chastity, will be referred rather to lust than to rupture 
of friendly relations, and the seizure of another's property will make 
the aggressor guilty of a new act of greed rather than of the breaking 
of faith. 

3. When no new cause is presented, threats that are truly 
savage are ihconsistent with friendly relations. To this head I shall 
refer also the building of fortresses on the boundaries, not for defence 
but for the purpose of inflicting harm ; and an unwonted levying 
of troops, if it shall be apparent, from satisfactory indications, that 
these are being levied against no one else than the party with whom 
the peace has been made. 

XLI. Whether it is contrary to friendship to receive subjects and 
exiles 

I. It is not contrary to friendship to admit individual subjects * 
who wish to migrate from one government to another. Such liberty 
in fact, as I have said elsewhere, is not only natural but also advan- 
tageous. 

1 Solon says [Plutarch, Solon, xxiv=p. 91 f] : ' He did not allow any strangers to be enrolled in 
the list of citizens except those who had been banished for ever from their own country, or had moyed 
to Athens with their entire household in order to practise some trade.' According to Appian, Selections 
on Embassies, no. xxv [=Macedonian Afairs, xi. 6], Perseus said : ' I have done this in accordance with 
the common right of mankind, as you also receive those who have been expelled from other places.' 
This common right is usually confirmed and strengthened by treaties. 

See the peace of Antiochus in Polybius, Selections on Embassies, no. xxxv [=XXI. xln. 18], and m 
Livy [XXXVIII. xxxviii] ; the peace between the Romans and Persians in Menander Protector [frag. 
11, p. 10, edit. Dindorf ] ; and Simler concerning the treaties among the Swiss. Strabo, Book XVI 
[XVI. ii. 14], bears witness: 'While the kings of Syria were fighting with each other, the Aradians 
obtained the right to admit fugitives, but not to permit their departure.' 



Digest, 
XLIX, 
xv. 5. 



For 

Gabinius 

[see 

Jerome, 

Apology 

against 

Ruf., I. i]. 



Digest, 
XLVII. 
x. 15 
35- 

Inst., IV. 
iv. 3- 
Alexander, 
Consilia, 
II, no. 3. 



II. v. 24 



820 



On the Law of War and Peace 



[Book III 



;n. v. 

XLII 
[XU. 7) 



25-] 



[i-p. 

105 c.] 



[III. 

8-] 



II. xxi. 
3ff- 



Under the same principle I include the granting of asylum to 
exiles. For over exiles the state has no right, as I have noted else- 
where, quoting Euripides. In Livy Perseus rightly inquires : ' What 
is accomplished by sending any one into exile, if there is not going 
to be a place anywhere for the person exiled ? ' In the second speech 
On Leuctra, Aristides says : [583] ' It is a common right of mankind 
to admit exiles.' 

2. As I have said elsewhere, 1 it is clearly not permissible to 
admit towns or large aggregations, which constitute an integral 
part of a state. It is equally unpermissible to admit those who, by 
reason of an oath or in some other way, are under an obligation of 
service or of slavery. Moreover we have previously stated that 
among certain peoples the same rule has been introduced by the law 
of nations concerning those who are slaves by fortune of war. But 
also we have treated elsewhere of the surrender of those who, though 
not driven into exile, are seeking to escape a justly deserved penalty. 



XLII. How war may be ended by drawing lots 

The result of a war cannot in all cases be made subject to the 
chance of drawing lots, but only in those cases in which the issue 
is one over which we have full power. For the obligation of the 
state to protect the life, chastity, and other rights of its subjects, 
and of the king to protect the welfare of the state, is too great to 
permit the disregard of those considerations which stand in the 
most natural relation to the defence of themselves and others. Never- 
theless, if on a careful estimate the party attacked in an unjust war 
is so far inferior that there is no hope of resistance, it is apparent 
that a decision by lot can be offered, in order that a certain peril 
may be avoided by recourse to an uncertain one. This, in fact, is 
the least of the evils. 



Pausanias, 

V[iv 

,v.] 

Flortie- 

Rium 

67.] 



XLIII. How war may be ended by a set combat ; and whether this is 
lawful 

1 . There follows a much disputed question concerning combats 
which are agreed upon with definite numbers, for the sake of ending 
a war ; such combats, for example, with one on each side, as that of 
Aeneas and Turnus, or Menelaus and Paris ; with two on each side, 
as that between the Aetolians and the Eleans ; with three on each 
side, as that between the Horatii, who were Romans, and the Curatii, 
who were Albans ; or with thirty on each side, as that between the 
Lacedaemonians and the Argives. 



II. v. 24. See also Bizarri, Book XII. 



Chap. XX] 



On Good Faith in Ending War 



821 



2. If we consider only the law of nations, in a strict sense, 
there should be no doubt that, according to it alone, such contests 
are lawful ; for this law permits the killing of enemies without dis- 
tinction. If, again, the opinion of the ancient Greeks and Romans, 
and of other nations, were true, that each man is the master of his 
own life without restriction, then such combats would not lack moral 
justice also. But I have already several times said that this opinion 
is in conflict with true reason and the precepts of God. Elsewhere 
I have shown, both by reason and by the authority of the Sacred 
Writings, that whoever kills a man on account of things which we 
can do without sins against the law of love for his neighbour. 

3. Let us now add that a man sins also against himself, and 
against God, who values so cheaply the life which was granted to him 
by God as a great favour. If the issue at stake, such as the safety 
of many innocent persons, is worthy of war, we must strive with all 
our strength to win. To use a set combat as an evidence of a good 
cause, or as an instrument of divine judgement, is unmeaning, and 
inconsistent with the true sense of duty. 

4. There is only one condition which can render such a combat 
just and patriotic, from the point of view of one side merely ; that 
is, if otherwise the expectation is in all respects warranted that the 
party supporting the unjust cause is going to be the victor with 
great slaughter of innocent persons. He, in fact, should be subject 
to no censure who prefers to fight in the way that will give to him 
the greatest probability of success. But this also is true, that some 
acts, which are not done rightly, are not approved as right by others, 
but are held permissible for the avoidance of more serious evils 
which cannot otherwise be escaped ; as in many places base usurers 
and prostitutes are tolerated. 

5. Therefore, as I previously said, when it is a question of 
avoiding war, if two persons, who are striving for the sovereignty, 
have prepared to contend with arms against each other, the people 
can allow such a combat in order that a greater calamity, otherwise 
imminent, may be avoided ; so the same thing will have to be said 
when it is a question of ending a war. Thus [584] Cyrus chal- 
lenged the Assyrian king ; l and, according to Dionysius of Halicar- 
nassus, Mettius said that it would not have been an unfair thing 
for the leaders themselves of the peoples 2 to decide the question 

1 Long before that time Hyllus challenged Eurystheus. See Euripides, Children ofHercules [800 ff .]. 

2 Such is the reply which the inhabitants of Adrianople made to Mahomet, referring to him and 
to Musa Zeleb ; Leunclavius, Book XI. So Cunibert, king of the Lombards, challenges Alachis ; 
Paul Warnefrid, V [V. xl]. Thus Pharnacus wished to fight with the leader of the Sauromatae for 
the fortress of Cherso, in order that the populace might not be subjected to peril on account of their 
dispute, as Constantine Porphyrogenitus relates in the chapter on the fortress Cherso [De Administrando 
Imperio, liii, p. 150]. 

See Pontanus, Danish History [Book V, p. 151], for an example of a single combat [591] 



II. xix. 5 
and xxi. 1 

[xxi. 11]. 
II. i. 12 ff. 



Thomas, 
II. ii. qu. 
95, art. 8 
and Ca- 
jetan 
thereon. 



Cajetan, 
as cited 
above. 



II. xxiii 
[10]. 

Aegidius 
Regius, 
disp. 32, 
dub. 2, 
no. 18. 
[Xen., 
On the 
Training 
of Cyrus, 
V.iu.5.3 
III [xii. 3]. 



822 On the Law of War and Peace [Booklll 

by fighting with each other, if the contest had been for their own 
power or rank and not for that of their peoples. So we read that 
the Emperor Heraclius * fought in single combat with Chosroes, the 
son of the Persian king. 

XLIV. Whether the act of kings in such cases binds their peoples 

On the other hand, those who thus refer a controversy to the 
outcome of a combat can indeed deprive themselves of whatever 
right they themselves possess, but in those kingdoms which are not 
patrimonial they cannot also give a right to another who does not 
possess it. In such cases, therefore, in order that a treaty may be 
valid, it is necessary to add the consent both of the people and of 
those persons, already born, who have the right to the succession. 
In fiefs which are not free the consent of the lord or seigneur of the 
fief also is required. 

XLV. In such combats who is to be judged the victor ? 

i. Often in such combats the question is raised, which of the 
two should be considered the victor. 2 Only those can be considered 
vanquished on whose side all have either fallen or taken to flight. 

iii rii. 3 ]. So, according to Livy, withdrawal to one's own territory or towns 
is a sign of defeat. 3 

2. In three famous historians, Herodotus, Thucydides, and 
Polybius, three disputes about victory are presented, and of these 
the first refers to a set combat. But if any one views the evidence 
correctly he will find that in all these contests the parties separated 

Hero- without a true victory. For the Argives were not put to flight by 

nxxxiii 1 Othryades, but had gone away at the coming of night, thinking that 
they were victors, and intending to report the victory to their people. 

Thucy- Neither had the Corcyraeans put to flight the Corinthians, who, 
i^d 1 a ^ ter having fought successfully, had perceived a strong Athenian 

livj. fleet and had gone away in good order without making any test of 

strength with the Athenians. Philip of Macedon had indeed captured 
a ship belonging to Attalus, after it had been deserted by its men, 
but he had completely failed to put the fleet to flight ; and so, as 

xvi [ij. Polybius remarks, he conducted himself, rather than considered him- 
self, as a victor. 

for the kingdom. See also what the historians relate concerning the challenges between the Emperor 
Charies V and Francis I, king of France. 

M Aimoin, IV. xxi, and Fredegarius, lxiv. 
Ennius [frag. 330, in Servius, On ihe Aeneid, XI. 307]: 

Who conquers is not victor, if the vanquished owns it not. 
See Scaliger on the words of Festus, herbam do. 
' And in Guicciardini, Book II. 



Chap. XX] 



On Good Faith in Ending War 



823 



3. The other evidences the collecting of spoils, the giving up 
of dead for burial, 1 and challenging to battle a second time, which 
in the passage cited and in Livy you sometimes find mentioned as 
signs of victory prove nothing in themselves, excepting in so far 
as, in connexion with other signs, they bear witness to the flight of 
the enemy. Surely in case of doubt the one who has retired from the 
field of battle may be presumed to have fled. When, however, there 
are no sure proofs of victory, the issue remains in the same condition 
as before the battle, and must be referred either to battle or to new 
agreements. 



XXIX 

and XL. 



XLVI. Hozv war may be ended by arbitration ; and here arbitration 
is understood to be zvithout appeal 

1. Proculus teaches us that there are two kinds of arbitrators. 
One is of such a sort that we ought to render obedience, whether 
he is just or unjust ; and this kind of arbitration, he says, is found 
when the parties resort to an arbitrator under mutual promises to 
abide by his decision. The other deals with matters of such a kind 
that they ought to be referred to the decision of a just man ; and of 
this type we have an example in the reply of Celsus : ' If a freedman ', 
he says, ' has sworn to give as many services as the patron has judged 
proper, the decision of the patron will not be valid, unless the freed- 
man has thought it fair.' 

While it was possible for this interpretation of an oath to be 
introduced by the Roman law, it is not in harmony with the simple 
meaning of the words viewed by themselves. Nevertheless this 
remains true, that an arbitrator can be chosen in either of two ways. 
Either he is charged with the task of reconciliation only, as we read 
that the Athenians were when selected as arbitrators between the 
Rhodians and Demetrius ; or he serves as one whose decision must 
be absolutely obeyed. It is the latter class with which we are here 
dealing, and of which we said something above, when we spoke of 
the methods of avoiding war. 

2. Although municipal law may make provision for arbitrators 
to whom resort is had under promises on both sides, [585] an d 
in some places has provided that it shall be lawful to appeal from 
them and to make complaint of injustice, nevertheless such a pro- 
cedure cannot become applicable in relation to kings and peoples. 2 

1 Plutarch, Agesilaus [xix= p. 606 b], says : ' But after the enemy had sent to ask permission to 
bury their dead he granted it, and having in that manner obtained a testimony of victory he went 
away to Delphi.' Likewise in the Nicias[vi=p. 527 ab] : ' And yet according to established and accepted 
custom those who had received permission to bury their dead were thought to have given up all claim 
to the victory, and those who had obtained such a request did not have the right to set up a trophy.' 

2 Mariana, XXIX. xv ; Bembo, IV [fol. 62]. There are many examples of peace made by 
arbitration in Kromer's Poland, Books X, XVI, XVIII, XXI, XXIV. XXVII, XXVIII. Theie is one 
also in the second book of the Danish History by Pontanus. Cf. also above, II. xxm. 18 [II. xxin. 8]. 



Digest, 
XVII. 
ii. 76. 



Digest, 
XXXVIII. 
i. 30. 



II. xxii 
[II. xxiii. 

8]. 



824 On the Law of War and Peace [Booklll 

For here there is no higher power, which can either hold fast or 

loosen the bond of the promise. Under such conditions, therefore, 

the decision of arbitrators, whether just or unjust, must stand abso- 

Naturai lutely, so that one may rightly apply here the saying of Pliny : ' Each 

^re/ace" makes the man whom he chooses the supreme judge of his case.' It 

[19]- is, in fact, one thing to make inquiry concerning the duty of the 

arbitrator, and another to inquire concerning the obligation of those 

who promise. 

XLVII. In case of doubt it is understood that arbitrators are bound to 
decide according to law 

1. In respect to the duty of an arbitrator, the point must be 
considered, whether he has been chosen in the place of a judge, or 

On with somewhat larger powers. Seneca seems to think the latter charac- 

fr^vif 5 ' teristic of an arbitrator, when he says : 

L ' v The condition of a good case seems to be better if it is referred to a judge rather 

than to an arbitrator ; for the rules of law apply to the former and set certain limits, 
which he may not pass. In the case of the arbitrator, a religious scrupulousness, free and 
unchecked by restraints, can both take away and add to, and direct the decision not as 
the law or justice advises, but as humanity and pity move. 

Rhdotic, Aristotle also says that ' it is the part of a fair and kindly man 

fi ^fii to P re ^ er to have recourse to an arbitrator rather than to go to 

19]. law ' ; and he adds as the reason, ' For the arbitrator has regard 

to what is fair, but the judge follows the law. Indeed the arbitrator 

was brought into existence for this very purpose, that equity might 

prevail.' 

2. In the passage just quoted equity does not properly mean, 
as elsewhere, that division of justice which interprets more narrowly 
the general import of law according to the intention of the lawgiver, 
for such interpretation has been committed to the judge also ; rather 
it means everything which is better done than left undone, even 
outside of the rules of justice properly so called. 

Such arbitrators, however, as are common between private 
persons and citizens of the same country are especially recommended 
also to Christians by the Apostle Paul (1 Corinthians, vi). Yet 
in a case of doubt it ought not to be understood that so great 
power has been granted ; in doubtful cases, in fact, we follow the 
narrowest interpretation. But this statement is especially in point 
in respect to those who hold sovereign power ; for since they have 
no common judge, we must consider that they have restricted the 
arbitrator by those rules by which the office of a judge is usually 
restricted. 



Chap.XX] On Good Faith in Ending War 825 

XLVIII. Arbitrators ought not to decide concerning possession 

Nevertheless this observation should be made, that arbitrators 
chosen by peoples or by sovereigns x ought to render a decision 
regarding the main point at issue, but not in regard to possession. 
For decisions regarding possessions belong to municipal law ; by the 
law of nations the right of possession follows ownership. Conse- 
quently, while the case is under advisement, no change ought to be 
made, not only to avoid prejudice, but also because recovery is difficult. 
In his account of those who served as arbitrators between Carthage 
and Masinissa, Livy says : ' The commissioners made no change in [XL. xvii. 
the right of possession.' 6 -l 

XLIX. What is the force of surrender pure and simple ? 

1. The acceptance of an arbitrator is of a different sort when 

any one entrusts the decision regarding himself to an enemy ; for 

this is pure surrender, which makes the one who surrenders a subject, 

and confers the sovereign power on him to whom the surrender is 

made. The Greeks call this ' yielding the power over oneself '. So 

we read that the Aetolians were asked in the senate, whether they Livy, 

would leave the decision regarding themselves to the Roman people. *j!P* 

According to Appian the advice of Publius Cornelius Lentulus in xiv 

regard to the Carthaginian state at the end of the Second Punic J^ an ' 

war was as follows : wars, 

xiv. 

Let the Carthaginians entrust themselves to our decision, as conquered peoples are ix. 64]. 
accustomed to do, and as many have done heretofore. We shall then look into the matter, 
and if we shall have granted anything to them they will be grateful to us ; [586] for 
they will not be able to call it a treaty. 

That, furthermore, makes a very great difference. So long as we make treaties with 
them they will always be finding pretexts, as if wronged in respect to some point of the 
treaty, in order that they may break it. For openings for controversy always remained, 
since many points are of doubtful interpretation. But when we have taken away their 
arms from them as having surrendered, and have brought their very persons under our 
power, then at length they will understand that they have nothing that is their own ; 
then they will lose heart, and whatever they may have received from us they will gladly 
accept as if bestowed from another's bounty. 

2. But here we ought also to distinguish what the conquered 
ought to endure ; again, what the victor can do lawfully, what even 
in conformity with the full discharge of duty, and finally, what it 
is most fitting for him to do. 

After the surrender there is nothing that the vanquished may 
not have to suffer. He is, in truth, already a subject; and, if we 
consider only the strictly legal rights of war, he is in such a position that 

1 The Duke of Savoy said this in the contest about Saluzzo. See de Serres [or rather, his con- 
tinuator] on Henry IV. 



XXXVII 

[xlix. 4]. 



8 2 6 



On the Law of War and Peace 



[Book III 



XXXVII 
[vii. i]. 

III. viii. 4. 



VI, 11 
[XXVIII. 

xxxiv. 7]. 



III. xi. 
18 [16]. 



everything can be taken from him his life, his personal liberty, and 
the property not only of the state but also of individuals. 

In another passage Livy says : ' The Aetolians, having sur- 
rendered at discretion, were afraid that vengeance would be wreaked 
upon their persons.' Elsewhere I have cited the following : ' When 
all things have been surrendered to him who is the more powerful 
in arms, it is for the victor to judge, and to decide, what he wishes 
the conquered to have, what he wishes them to give up by way of 
punishment.' The following statement of Livy bears upon the same 
point : 

It was an ancient custom of the Romans not to assume sovereignty over a people 
as conquered a people with which they were not united in friendship either by treaty 
or by common laws until all things, divine and human, had been surrendered, hostages 
had been accepted, arms taken away, and garrisons placed in the cities. 

Also we have shown that the putting to death of those who had 
surrendered was sometimes lawful. 



III. XV. 

XIII 
[xxi. 6] 



[XIII. 
xxiii. 5.] 



[Civil 
Wars, V. 
v. 45-] 



12. 



L. What is the duty of the victor toward those who make an uncon- 
ditional surrender ? 

1. But in order that the victor may not do anything unjustly 
he ought first to see to it that he kill no one, unless this fate is deserved 
by the prisoner's own act ; again, that he take nothing from any one 
except as a lawful penalty. Moreover within this limit, 1 so far as 
one's own safety allows, it is always the part of honour to incline to 
clemency and generosity ; sometimes, in consideration of the cir- 
cumstances, such a course is even made necessary by the rule of 
custom. 

2. As I have said elsewhere, wars are well ended when they 
terminate with pardoning. According to Diodorus, Nicolaus of 
Syracuse says : ' They surrendered themselves with their arms, 
relying on the clemency of the victor. Therefore it would be shameful 
for them to be deceived in their expectation of humane treatment 
on our part.' Afterward he adds : ' Who of the Greeks ever thought 
that those ought to be punished relentlessly who entrusted them- 
selves to the clemency of the victor ? ' 

In Appian Octavius Caesar, addressing Lucius Antony, who had 



come in order to surrender, 



says 



If you had come to make a treaty, you would have found me both a conqueror and 
a man inccnsed by wrong-doing. Now, since you yield yourself, your friends, and your 
army to my decision, you take away my anger, you take away also that power which you 
would have been forced to yield to me in a treaty. For now I am obliged to take into 

1 See the famous example of Ferdinand, king of Leon, in Mariana, XI. xv. Also recall what I have 
said above, III. xi. 14-15. 



Chap. XX] 



On Good Faith in Ending War 



827 



account, along with what you ought to suffer, also a second consideration, what it is right 
for me to do ; and I shall give preference to the latter. 

3. In the Roman histories the expression ' to surrender oneself 
to the good faith ', or ' to surrender oneself to the good faith and 
clemency ', is often found. So in Livy, Book XXXVII : ' In a kindly 
manner he listened to the embassies from neighbouring peoples 
surrendering their states to his good faith.' Also in Book XLIV, 
where the narrative concerns [587] King Perseus, we read : 
' Since Paulus was insisting that he should surrender himself and 
his possessions to the good faith and clemency of the Roman people.' 
Still the fact should be recognized that by these words nothing else 
is understood than absolute surrender ; and the word translated 
good faith * in these passages does not suggest anything else than the 
probity of the victor, to which the vanquished commits himself. 

4. In Polybius and Livy there is a f amous story 2 about Phanaeas, 
the ambassador of the Aetolians, who in his speech to the consul 
Manius yielded as far as to say : ' Therefore the Aetolians have 
resolved to surrender themselves and their possessions ', as Livy 
states, * to the good faith of the Roman people.' In response to 
a question of the consul, he affirmed this a second time ; then the 
consul demanded that certain persons who had stirred up the war 
should be surrendered to him without delay. Phanaeas took excep- 
tion to this and said : 6 We have surrendered ourselves to your good 
faith, and not to slavery,' adding that what was ordered was not 
consistent with Greek custom. The consul replied that he did not 
care what the custom of the Greeks was ; that according to Roman 
custom he had power over those who had surrendered to his dis- 
cretion ; and he gave orders that the ambassadors be put in chains. 
In the Greek author is the question : ' Are you here discussing duty 
and propriety, when you have already surrendered yourselves to our 
good f aith ? ' 

From these words it is clear with how great impunity, and 
without violating the law of nations, he can act to whose good faith 
a people has surrendered. Yet the Roman consul did not take advan- 
tage of this power, but both dismissed the ambassadors and gave to 
the council of the Aetolians an opportunity of deliberating anew. 

Similarly the Romans are said to have replied to the Faliscans, 
that they had been given to understand that the Faliscans had sur- 
rendered themselves not to the power, but to the good faith of the 



[ix. 7-] 



[iv. 7.] 



Livy, 
XXXVI 

[xxviii. 1.] 



Valerius 
Maximus, 
VI. iv 
[VI. v 1]. 



1 Polybius says [Selections on Enibassies, xiii=XX. ix]: 'Among the Romans the same force is 
found in the expressions " to entrust oneself to another's faith" and " to give to the victor unrestricted 
power of deciding concerning oneself".' ' _ 

The Greeks say, to surrender themselves to justice', as m Thucydides, Book III [III. IxvnJ, 
or ' to yield the power over themselves', as in Diodorus Siculus, Book XIV [XIV. cxi]. 

2 Selections on Embassies, no. xiii [= XX. x]. 



828 On the Law of War and Peace [Booklll 

Livy, Romans. We read also of the Campanians, that they had come into 

y^j 1 the good faith of the Romans not by treaty, but by surrender. 

5. You would, in truth, not ineptly apply to the duty of him 
on to whom a surrender has been made this passage of Seneca : 

n*v?M ' Clemency possesses unlimited right of decision. It judges not 
according to the letter of the law, but according to what is just and 
good ; and it may acquit, or assign a penalty as great as it will.' 
And I do not think that it makes any difrerence whether the one 
who surrenders says that he surrenders himself to the wisdom, or to 
the moderation, or to the mercifulness of the victor. All these 
words are merely gracious expressions. The fact remains, that the 
victor becomes absolute master. 

LI. Concerning conditional surrender 

Xevertheless there are also conditional surrenders. These either 
safeguard the interests of individuals, that the safety of their lives, 
or the freedom of their persons, or even certain property may be 
reserved ; or they make provision for the whole body of the people. 
Such surrenders in some cases may even introduce a sort of mixed 
1 ni. 17. sovereignty, as I have explained elsewhere. 

LII. Who can, and should, be given as hostages ? 

Hostages and pledges are accessories of treaties. I have said 
that hostages are given x either of their own will, or by him who 
holds the power and authority. For in the supreme civil authority 
is included the right over the acts as well as over the property of the 
subjects. But the state or its ruler will be obligated to compensate 
the person who suffers, or his relatives, for the inconvenience. 

If there should be several persons, and it should make no differ- 
ence to the state which of these should go as a hostage, it seems 
clear that pains should be taken to have the choice settled by lot. 

The lord of a fief does not possess the right to select a vassal as 
a hostage unless the vassal is also a subject. For the fealty and duty, 
which the vassal owes, do not go so far. 

LIII. What the right over hostages is 

I have said that according to the strict law of nations a hostage 
can be put to death ; but that is not also in accord with moral justice, 
unless there is a fault on the part of the hostage meriting such punish- 
ment. Hostages, moreover, do not become slaves. Furthermore, by 
the law of nations they can both hold property and leave it to their 

1 In this work, III. iv. 14 ; see also III. xi. 18. 



Chap. XX] On Good Faith in Ending War 829 

heirs ; although the Roman law provided that their property should Digest, 
go to the state treasury. xlix. 

J xiv. 31. 

LIV. Whether a hostage may lawfully escape 

Is the question raised whether a hostage may lawfully make his 
escape ? It is agreed that he may not, if [588] at the beginning, 
or afterward, he gave a pledge, in order that he might have more 
liberty. Under other conditions it seems to have been the intention 
of the state not to bind its citizen not to try to escape, but to give 
to the enemy the power to guard him as it might wish. 

Thus the deed of Cloelia can be defended. But, although she Uvy, 
had not herself done wrong, yet the state could not receive and "^f"' 
retain the hostage. 1 So Porsenna said : ' If the hostage is not sur- 
rendered, the treaty will be considered as broken ' ; then we read : 
6 The Romans restored the pledge of peace in accordance with the 
treaty.' 

LV. Whether a hostage may be lawjully detained for any other reason 

The obligation arising from the use of hostages, moreover, is 
distasteful, not only because it infringes liberty, but also because it 
arises from the act of another. Consequently, a narrow interpreta- 
tion is here in point. Hence it follows that hostages given on one 
account cannot be detained on another. This is to be understood as 
applying in case some other promise has been made without the 
addition of hostages. 

If, however, good faith has already been violated in another 
matter, or a debt contracted, the hostage can then be retained, not 
as a hostage, but in accordance with the law of nations, according 
to which subjects can be detained ' by reprisal' (/car' avBpoXrjxpLav) see 
on account of an act of their rulers. Nevertheless provision may be j h ve { u 
made that this should not happen, by adding an agreement regarding [h ii. 3]- 
the return of the hostages when the matter on account of which 
they were given has been closed up. 

LVI. A hostage is set free at the death of the one for whom he came as 
hostage 

One who has been given as a hostage, merely to take the place 
of a captive or hostage, is set free at the death of the latter. For 
Ulpian says that at the moment the latter dies the right of pledge 

1 See Plutarch, Publicola [xix= p. 107 a] on this matter. To the verse of Virgil [Aeneid, VIII. 651] : 
And Cloelia broke her bonds and swam, 
Servius adds, ' bonds of the treaty'. 



8 3 o 



On the Law of War and Peace 



[Book III 



Digest, 
XLIX. 
xv. 15. 



Syrian 
Wars 

[viii. 47]- 

XXXIV 



II. xvi. il 
[II. xvi. 
16J. 



II. XV. 18 

[II. xv. 16]. 

Alberico 
Gentili, De 
lure Belli, 
II. xix. 



is destroyed, as in the case of a ransomed captive. Therefore, as in 
Ulpian's inquiry the ransom, which was to take the place of the 
person, is not due, so here the person who was made the substitute 
of another will not remain bound. 

Thus according to Appian Demetrius not unjustly demanded 
that he be released by the Roman senate, since he had been given 
as a hostage in the place of Antiochus, and Antiochus had died. 
Justin, following Trogus, says : ' Demetrius, a hostage at Rome, 
having learned of the death of his brother Antiochus, came before 
the senate saying * ' that he had come as a hostage when his brother 
was living, but, now that his brother was dead, he did not know for 
whom he was a hostage.' 

LVII. Whether a hostage may be retained after the death of the king 
who gave him 

The decision whether a hostage may still be held after the death 
of the king who made the treaty is dependent on the question treated 
by us elsewhere, whether the treaty should be considered personal 
or real. For accessories cannot cause us to withdraw from the rule 
in the interpretation of the main articles, the nature of which the 
accessories themselves ought to follow. 

LVIII. Sometimes hostages are under obligation as principals, and one 
is not bound for the act of the other 

It should be added, in passing, that sometimes hostages are not 
mere accessories to the obligation, but are in fact the principal party. 
This would be the case, for example, when any one has promised 
under contract to perform an act not his own, and because he is 
bound for the resulting damage, if the act is not performed, his 
hostages are bound in his place ; and I have said elsewhere that 
this seems to have been the decision regarding the Caudine treaty- 
compact. On the other hand the opinion of those who hold that 
hostages without their consent can be mutually bound for each 
other's acts is not only severe but also unjust. 

LIX. Of what sort is the obligation arising from pledges of property ? 

Pledges of property have certain points in common with hostages, 
and certain points peculiar to themselves. It is a characteristic 
common to both, that they are retained even on account of another 
debt, unless faith has been pledged to the contrary. It is a charac- 
teristic peculiar to pledges of property that an agreement made 



1 This word needs to be restored in the text to make the sentence grammatical. 



Chap.xx] On Good Faith in Ending War 831 

concerning them is not taken as strictly as one concerning hostages. 
For the matter is not equally distasteful, since things are made to 
be held, but men are not. 

LX. When the right of redemption is lost 

This also I have mentioned elsewhere, that no length of time 11. iv. 
can bring it about that a pledge of property should not be redeem- i^ 11 ' 1 ^ 
able, if that is performed for which the pledge was given. For an 
act, which has an old and familiar cause, is not supposed to arise 
from a new cause. Thus the patience of the debtor should be ascribed 
to the old contract, and not to the abandonment of ownership, 
[589] unless inferences that are warranted suggest another inter- 
pretation ; as if a person, prevented at the time when he wished to 
redeem a pledge, had allowed the matter to pass without mention for 
so long a time that it might warrant the presumption of consent. 



1569.27 3 K 



[S9 2 ] 



CHAPTER XXI 



ON GOOD FAITH DURING WAR ; HEREIN ALSO CONCERNING 

A TRUCE, THE RIGHT OF SAFE-CONDUCT, 

AND THE RANSOM OF PRISONERS 



[Aeneid, 
X. 532-J 

Antuils, 
XIV 

[XXX 

and//i$- 

tories, 

III [lxxxi]. 

[Iliad, 

XXII. 

261.] 

[VIII. i. 4.] 



Nic. Eth., 

[I. iii;] 
VIII [vi]. 

[OnNic. 
Eth., I. 

xiv.] 

[VI. i.] 



Horace, 
Satires, 

I. iii 
[129-32]. 



[I. "v. 4.] 

M 



I. What a truce is, and whether this interval is to he considered as 
peace or war 

1. Even during a war the sovereign authorities are accustomed 
to grant certain rights, which, with Virgil and Tacitus, I may call 
1 intercourse of war ', or with Homer, ' solemn agreements '. Among 
these are included the truce, the right of safe-conduct, and the ransom 
of prisoners. 

A truce is an agreement by which warlike acts are for a time 
abstained from, though the state of war continues. I say, ' though 
the state of war continues ', for, as Cicero says in the eighth Philippic, 
there is no middle ground between war and peace. War, further- 
more, is the name of a condition which can exist even when it does 
not carry forward its operations. 

Aristotle says : ' It may happen that a man may be endowed 
with virtue, and either sleep or pass his life in inactivity.' Elsewhere 
the same author says : * Distance between places does not destroy 
friendship, but hinders the exercise of it.' Andronicus of Rhodes 
remarks : ' An accomplishment may so exist that it accomplishes 
nothing.' Eustratius comments thus on the sixth book of the Nico- 
machean Ethics : ' Skill considered in relation to power simply is 
spoken of as potentiality ; but if compared with the action itself or 
its exercise it is called a power, as the surveyor's art in a sleeping 
surveyor.' 

Just as Hermogenes, though silent, 1 yet remains 
A singer and the best of players ; and Alphene, 
Sly fellow, when his tools of trade were cast 
Aside, and closed his shop, was still a cobbler. 2 

2. In like manner, then, as Gellius also says : ' A truce is not 
peace, for, though [593] flghting ceases, the war continues.' 
Also in the Panegyric of Latinus Pacatus we read : * A truce suspends 
the acts of war.' This I say that we may know that, if an agreement 
has been made which is to be valid in time of war, this will be valid 
also in a truce, unless it is clearly apparent that the agreement applies 
not to the state of war but to its acts. 



1 (599] Seneca, On BeneRts, V. xxi [IV. xxi. 4] : ' He is even eloquent who is silent. 
In the passage just cited, Seneca says : * He also is an artisan who is 



tools for practising his trade.' 
832 



not supplied with the 



Chap.XXI] 



On Good Faith during War 



833 



On the contrary, if anything has been said in regard to peace, 
this will not be applicable in time of truce ; although Virgil spoke 
of a truce as a mediatress of peace, and Servius, on the same passage, 
as a temporary peace. So the Scholiast on Thucydides calls a truce 
1 an ephemeral peace in travail of war ' ; and Varro, a respite of military 
operations, lasting a few days. All these are not definitions but 
descriptions, and that, too, figurative. In the same class also is the 
characterization of Varro, when he called a truce the vacation of 
war ; he might likewise have called it a slumber of war. Thus 
Papinius Statius called the holidays, which were free from lawsuits, 
peace. Aristotle called sleep the chain of the senses, and following 
his example you may rightly call a truce a chain of war. 

3. Gellius rightly criticizes the explanation of Marcus Varro, 
which Donatus also follows, because Varro added the words * lasting 
for a f ew days ' ; he shows that truces are frequently given also for 
hours, and I may add likewise for twenty, thirty, forty, and even 
for one hundred years. There are examples of such truces in Livy, 
and they disprove the following definition of Paul the jurist also : 
' A truce exists when, for a brief period and for the present time, an 
agreement is made that the two sides refrain from attacking each 
other.' 

4. Nevertheless, if it shall be apparent that the sole and only 
determining cause of an agreement was the cessation of warlike acts, 
it may happen that what has been said of a time of peace will in that 
case apply during the truce, not from the force of the word, but 
from a sure inference as to the intention, regarding which we have 
spoken elsewhere. 

II. The derivation of the zuord 

Moreover, it seems clear that the word induciae (truce) is not, 
as Gellius thinks, derived from inde uti iam (then as now) ; nor 
from endoitu, that is, introgressu (an entering in), as Opilius proposes, 
but [from inde otium\ because inde, that is, ' from a certain time ', 
there may be otium (rest), just as the Greeks call a truce e/cexei/na 
(a holding of hands). 

It is, in fact, apparent, even from Gellius and Opilius, that the 
ancients wrote this word with the letter t and not c ; and, though 
now used as a plural, it was formerly without doubt also a singular. 
The old spelling was indoitia, for then they pronounced otium as 
oitium, from the verb oiti, which we now spell uti, just as from poina 
(now written poena) punio x is derived, and from Poinus (now Poenus) 
Punicus comes. 



[Aeneid, 
XI. 133.] 

[I. xl.] 
[Aulus 
Gellius, I. 

XXV. I.] 



[Silvae, 
IV. iv. 40.] 

[On Sleep 
and Vigil, 
i, iii.] 
I. xxi 
[I. xxv]. 
On Te- 
rence's 
Eunuch, 
I.i. [line 
60]. 
Digest, 
XLIX. 
xv. 19. 1. 



III. xvi. 
20 [II. 
xvi. 20]. 



Gellius, 
XIX. viii 
[13] 



1 See Servius, On the Aeneid, X [X. 24], on the word moerorum. 
3 K2 



34 



On the Law of War and Peace 



[Book III 



XIX. viii. 

OnTe- 
rence's 
Eunuch 
[line 60]. 

Livy [X. 
xlvi. : 
Plutarch, 
Justin. 



Just as from the plural ostia, ostiorum has been derived the 
singular Ostia, Ostiae, 1 so from indoitia, indoitiorum has come indoitia, 
indoitiae ; hence indutia, the plural of which, as I have said, is now 
in use. Formerly, as Gellius notes, it was also used in the singular 
number. Donatus was not far out of the way when he wished to 
explain induciae from the fact that a truce furnished a rest for some 
days. 

A truce, then, is a period of rest in war, not a peace. And so 
the historians use the term properly in saying, as they frequently 
do, that a peace was refused, a truce was granted. 



Angelus, 
On Dig., 
II. xiv. 
27. 1. 
Martinus 
Laudensis, 
[De Bello,] 
qu. 29. 



IV [3 
14]. 



III. A new declaration of war after a truce is not necessary 

In consequence, after a truce there will be no need of a new 
declaration of war. For when the temporary obstacle is removed 
the state of war, which was not dead but sleeping, asserts itself, just 
as the right of ownership ,and the power of the father assert them- 
selves in a man who has recovered from insanity. 

Nevertheless, we read in Livy that, in accordance with the decision 
of the treaty priests, war was declared upon the termination of a truce. 
The fact is, however, that the ancient Romans wished by those 
unnecessary precautions to show how much they loved peace, and 
how just the causes were by which they were drawn into war. This 
is implied by Livy himself : 

They had fought recently near Nomentum and Fidenae with the Veientes. [594] 
A tnice, not a peace, had been made, the limit of which had expired, but before that date 
of expiration the Veientes had again taken up arms. Nevertheless heralds were sent, but 
when on oath they demanded restitution, in the manner of our ancestors, their words 
were not listened to. 



Dig. L. 
xvi. 134. 



IV. How the period of time jixed for a truce ought to be reckoned 

1. The duration of a truce is commonly made either a con- 
tinuous period, as for one hundred days, or with the designation of 
a fixed limit, as up to the first of March. In the former case the 
calculation must be made exact to the minute. This, in fact, is in 
accord with nature ; for the reckoning of time by civil days arises 
from the laws and customs of peoples. In the other case doubt is 
generally raised, whether the day, the month, or the year, which 
has been fixed for the duration of the truce, should be understood 
as reckoned inclusively or exclusively. 

2. By nature, at any rate, there are two kinds of boundaries, 
one within the thing, as the skin is the boundary of the body, and 



And ostrea, ostreae, was formed frora ostrea, ostreorum. 



Chap. XXI] 



On Good Faith during War 



835 



the second outside of the thing, as a river is the boundary of a countiy. 
Boundaries which are fixed according to choice can be established 
by both methods. But it seems more natural that the boundary, 
which is a part of the thing, 1 should be assumed. Aristotle says : 
* That is called the boundary which is the extreme part of each 
thing.' 

Such an assumption, furthermore, is not inconsistent with 
practice. * If any one has said that something will happen before 
the day of his death, that day also, on which he has died, is counted.' 
Spurina warned Caesar of a danger which would not be delayed 
after the fifteenth of March. When accosted on the fifteenth, he 
said that the day had come, but had not yet passed. 2 This interpreta- 
tion, then, is all the more to be adopted when the extension of time 
contains an advantage in itself, as in the case of a truce, which spares 
human bloodshed. 

3. But the day ' from ' which a certain measure of time is said 
to begin will not be included in the measure, for the force of that 
preposition is to separate, not to unite. 

V. When a truce begins to be binding 

Incidentally I may add this, that a truce, and everything else o 
the kind, is binding on the contracting parties immediately after the 
agreement is completed. The subjects on both sides, however, begin 
to be bound as soon as the truce has taken the form of a law, and 
this requires some sort of publication abroad. As soon as the publica- 
tion has been made, it begins to have a binding force on the subjects. 
Nevertheless, if the publication has been made in one place only, 
that force does not manifest itself at the same moment throughout 
the whole area under governmental control, but only after a suffi- 
cient time for carrying the news to the different places. Therefore 
if in the meantime subjects have done anything contrary to the 
truce, while they will not be liable to punishment, the contracting 
parties will, nevertheless, be bound to make good the loss. 3 

VI. What is lawjul during a truce 

1. What is lawful, what is not lawful in a period of truce, may 
be understood from the very definition. For all acts of war are 
unlawful, whether against persons or against property, that is, what- 

1 Baldus, De Statutis, on the word usque ; Bartolus, On Digest, XXXII. iii. 35, and On Digest, 
I. ix. 12. Archidiaconus, On Decretum, II. xiii. 1. 1 ; Hieronymus de Monte, in his book De Finibus, 
chap. xxiii. 

2 Dio Cassius [XLIV. xviii] quotes the saying : ' It is here, but has not yet passed.' Appian 
[Civil Wars, II. xxi. 149] : ' The Ides are here, but have not yet passed.' 

3 As in the case of Scion in Thucydides, IV [IV. cxxii]. Therefore what Mariana (XXVIII. vii) 
relates was done by the Spaniards in Italy cannot be defended. 



Meta' 
physics, 
V.xvii[IV. 
xvii]. 



Dig. L. 
xvi. 133. 



Suetonius, 
Caesar, v 

[lxxxi]. 



Bartolus, 
On Dig., 
I. i. 9, 
Panorm., 
OnDe- 
cretals, I. 
ii. 2 (?), 
and there- 
on, Felinus, 
no. 7. 



836 



On the Law of War and Peace 



[Book III 



;xl. 

xxvii. 9.] 



[Digest, 
XLIX.xv. 
19. I.] 



ever is done by force against the enemy. In a period of truce, in 
fact, all such acts are contrary to the law of nations ; it was thus, 
according to Livy, that Lucius Aemilius explained the matter in 
a speech to his soldiers. 

2. Even property of the enemy, which has come into our 
hands by chance, will have to be restored, although it had been ours 
before. For as regards the legal right, according to which such matters 
have to be judged, the property in question has become theirs. 

This is what Paul the jurist had in mind when he said that in 
a time of truce the right of postliminy does not exist ; for postliminy 
requires, as antecedent, the right of capture in war, but this right 
does not exist in a truce. 

3. On both sides it is lawful to go and to return, but with 
such equipment only as does not suggest peril. This was noted by 
Servius on the verse of Virgil, 1 

And with impunity the Latins mingled. 

There Servius also relates that when Rome was besieged by Tarquin 
a truce was made between Porsenna and the Romans ; and during 
the celebration of the Circensian games in the city [595] the 
leaders of the enemy entered and contended in the chariot race, and 
were crowned as victors. 



XXXI 

[xxxviii. 
10]. 

Frontinus, 
[Stratege- 
mata,} II. 
xiii [8J. 



[XLII. 
xlvi. 9.] 



VII. Whether during a truce it is lazvful to retreat and repair walls, 
and the like 

It is not inconsistent with a truce to withdraw with the army 
further inland, as we read in Livy that Philip did. Again, a truce 
does not prevent the rebuilding of walls, nor the enrolment of 
soldiers, unless some special agreement has been made. 2 

VIII. A distinction regarding the seizure of places in time of truce 

1. Without doubt it is & violation of a truce to bribe garrisons 
of the enemy and seize places which they were holding. Such an 
acquisition, in fact, cannot be lawful except by right of war. The 
same principle must be applied in case subjects wish to revolt to the 
enemy. There is an example in Livy, Book XLII : 

The people of Corona and Haliartus, who had a kind of natural predilection for 
kings, sent envoys into Macedonia asking for a garrison with which they might be able 
to defend themselves against the unrestrained arrogance of the Thebans. To this embassy 
the king made answer, that he could not send a garrison to them on account of his truce 
with the Roraans. 



1 Servius, On the Aeneid, XI [XI. 134]. 



* As in Paruta, Book IIL 



Chap.XXl] On Good Faith during War 837 

According to Thucydides, Brasidas in time of truce received [iv. 
the city of Mende, which revolted from Athens to Sparta ; but the cxxlll] 
excuse is added, that he in turn had charges to make against the 
Athenians. 

2. It is indeed lawful to take possession of ownerless property, 
provided this has been really abandoned, that is, with the Intention 
that it should no longer belong to those to whom it had belonged ; 
but it is not lawful if the property is merely unguarded, whether 
the guard was removed before the truce was made, or afterward. 
Continuance of ownership in one renders possession by another 
unlawful. And by this rule the quibble of Belisarius against the Procopius, 
Goths is refuted ; for under such a pretext he had seized places warii 
which had been stripped of their garrisons x in time of truce. [vii]! 

IX. Whether^ at the end of the truce, one can return zvho has been 
detained by force majeure 

1. The question is raised, whether a person, who has been 
hindered by force majeure from returning, and is arrested within 
the territory of the enemy after the expiration of the truce, has the 
right to return. 

If we consider the strict law of nations, I do not doubt that this 
person is in the same position as one who, although he had come in 
time of peace, by his own misfortune is caught among the enemy by 
a sudden outbreak of war. We have noted above, that such a person m. ix [4]. 
remains a captive until the conclusion of peace. Nor is moral justice 
opposed to this, since the property and acts of the enemy are liable 
for the debt of the state and are taken in payment. The case in 
question does not in reality furnish more ground for complaint than 
that of so many other innocent persons upon whom the misfortunes 
of war fall. 

2. In this connexion, moreover, no comparison can be made 

with merchandise in a case of confiscation, nor with the illustration ***' 
given by Cicero in the second book On Invention ; he there speaks iv- 15 an ' d 
of a war vessel as having been driven into port by a storm, which the l6 - 8 - 
quaestor wished to confiscate according to law. In such cases force ^ 8 Lxxxl1, 
majeure frees from the penalty. But in the case of the person forcibly 
detained after a truce it is not, properly speaking, a question of 
penalty, but of a right, which was suspended during a certain time only. 
Nevertheless, there is no doubt that the releasing of such a person 
is a more kindly, yes, also a nobler, act. 

1 Portus, Centumcellae, Albanum. 



838 On the Law of War and Peace [Booklll 

X. Of special agreements in truces and the questions wont to arise 
therefrom 

Certain acts are unlawful during a truce on account of the special 
nature of the agreement ; for example, if a truce has been granted 
only for the purpose of buiying the dead, no deviation from that 
condition ought to be made. So if a truce has been given to those 
who are besieged, with the provision merely that they are not to be 
attacked, 1 it will not be lawful to admit auxiliary forces and sup- 
plies. For, while such a truce is advantageous to the one side, it ought 
not to make the situation harder for the other side which granted it. 

Sometimes also the agreement is made, that it shall not be lawful 
to go back and forth. Sometimes, again, provision is made for persons 
and not for things. 2 In the latter case, if persons are injured while 
property is being defended, the truce will not be violated. For 
since it is permissible to defend property, then personal safety must 
be referred to the main provisions, and not to what is derived from 
the consequences of some one provision. 

XI. When ihe terms of a truce have been violated by the one side, the 
other may begin war 

If the good faith of the truce has been violated by the one party, 

it should not be doubted that the party injured [596] is free to 

take up arms even without declaring war. For the main points of 

iii. xix. the agreement are implied in the manner of a condition in the agree- 

i4] C SS ! ment, as I have said a little above. 

** 3- In the histories you may indeed find examples of those who 

have endured wrongs till the end of the truce. But you may also 
iivy, ix read that war was declared against the Etruscans and others, because 
andxi tne 7 na d acted contrary to the truce. This difference is proof that 
[x. xxxvii the law is as I say, but that it is at the option of the injured party 
to use, or not to use, the right which he has. 

XII. What if a penalty, in case of violation of the truce, has been 
added ? 

This is established, that if the penalty agreed upon is demanded, 
and is paid by the one who has done the wrong, the right to make 
war no longer remains. The penalty, in fact, is paid with this in 
view, that all else may remain in safety. On the contrary, if war is 
begun, it is necessary to consider that, since the choice was given, 
the idea of paying the penalty has been abandoned. 

| Such as was givcn to the people of Naples by Totila, in Procopius [Golhic War, III. viii]. 
See Decretals, V. vi. n. There are examples of truces with exception of places in Procopius 
and Menander Protector. 



ff-3 



Chap.XXl] On Good Faith during War 839 

XIII. When the acts of private citizens break the truce 

Private acts do not break a truce unless in addition there is 
a public act, that is, through command or approval. 

Private acts aie understood to be in accordance with public 
command or approval if the guilty parties are neither punished nor 
surrendered, and if restitution is not made. 

XIV. What interpretation ought to he put on the right of safe-conduct 
outside of the period of truce 

The right of safe-conduct outside of the time of truce is a kind 
of privitege. In its interpretation, therefore, the rules which are 
laid down in regard to privileges ought to be followed. This privilege, 
however, is neither harmful to a third party nor very burdensome 
to the one who grants it. Consequently, within the natural meaning 
of the words a loose rather than a strict interpretation ought to be 
admitted, and so much the more in case the favour has not been 
granted in response to a request, but has been offered voluntarily ; 
so much the more, also, if a public advantage of some sort is con- 
nected with the business outside of private gain. A strict inter- 
pretation, therefore, even according to the meaning of the words, 
ought to be rejected, unless otherwise some absurdity would ensue, 
or very probable inferences as to intention seem to require it. 

On the other hand, a freer interpretation than is afforded by 
the natural meaning of the words will be in point, in order that 
a like absurdity may be avoided, or because of very cogent inferences. 

XV. Who may be classed under the tenn combatants 

From what has been said we draw the inference that the right 
of safe-conduct granted to combatants extends not only to inferior 
officers but also to officers of the highest rank ; for the natural mean- 
ing of the word admits of this interpretation, although there is 
another interpretation that is narrower. Similarly a bishop is in- 
cluded under the term clergy. 

Sailors also, who are serving in fleets, are understood to be com- 
batants, and in fact all are who have taken the military oath. 

XVI. How, in this connexion, we are to understand the terms go, come, 
and depart 

A provision in regard to going is considered to cover also the 

return, not from the meaning of the word, but to avoid an absurdity ; Diodorus 

for a favour ought not to be void of use. And a safe departure should ^}^' 

be understood to hold good until the person has reached a place p XXX i V ]. 



840 On the Law of War and Peace [BookHI 

where he is in safety. For this reason the good f aith of Alexander x 
was under accusation ; for he had ordered that those to whom he 
had granted the right to depart should be killed on the way. 

However, a person to whom permission has been granted to depart 
cannot also return. Again, a person who has received permission 
to come himself will not be able to send another ; and the reverse 
of this also holds. Such, in fact, are difTerent matters, and in such 
cases reason does not compel us to go beyond the meaning of the 
words. Nevertheless, this principle is applicable with the under- 
standing that, though an error confers no right, it at any rate relieves 
from the penalty, if a penalty formed a part of the agreement. 

Also the person who has received permission to come will come 
only once, and not a second time unless the allocation of time supplies 
a difrerent interpretation. 

XVII. On the extension of this to persons 

The son does not follow his father, nor the wife her husband, 
otherwise than in accordance with the right of residence. For we 
are accustomed to live with our family, but to travel abroad without 
it. Nevertheless it will be understood, even if not expressly stated, 
that one or two servants are included in the case of a person for 
whom it would be unbecoming to travel without such attendance. 

Abbas, For he who grants a favour grants that which of necessity follows. 

Decrctais, However, in such cases, necessity must be understood in a moral 

v. vi. 10. sense. 



[597] XVIII. On the extension of safe-conduct to haggage 

Similarly, not all kinds of goods will be included in the safe- 
conduct, but only such as are ordinarily taken on a journey. 

XIX. Who are included under the terms attendants and nationality 

If the term attendants is used, those ought not to be under- 
stood whose case is more provocative of hatred than that of the one 
for whom the safe-conduct is arranged. Such are pirates, brigands, 
deserters, and fugitives. The designated nationality of the attendants 
indicates clearly enough that the right is not extended to others. 

1'lutarch, Akxander [lix=p. 698 c] : ' This remained as a blot upon the warlike exploits of the 
king, who in other warlike deeds was accustomed to act both justly and in a manner befitting a king.' 
You find in Leunclavius, Book VI, a similar deed of Bayezid against the Vidynenses in Servia. 



XLIII 

XXVI. 2I ( 



Chap. XXI] 



On Good Faith during War 



841 



XX. Whether a right of safe-conduct is annulled by the death of the 
grantor 

Since the right of safe-conduct is derived from the force of 
authority, in case of doubt it is not annulled by the death of the 
one who granted it. This is in accordance with the rules which 
I have stated elsewhere in regard to favours granted by kings and 
other rulers. 

XXI. What if a right of safe-conduct has heen granted subject to the 
pleasure of the grantor ? 

There is usually a discussion regarding a safe-conduct granted 
with the restriction, ' so long as I wish'. 

The opinion of those is nearer the truth who think that a favour 
of this kind continues even if no new act of will occurs ; in case of 
doubt the presumption is that that remains in force which is sufficient 
for the validity of the right. But the force of the safe-conduct does 
not continue when the one who granted it has ceased to be able to 
wish it, 1 a condition brought about by death. When in fact the 
person is removed, the assumption of continuance also will cease, 
just as the accident ends with the destruction of the substance. 

XXII. Whether security outside of the territory also is due 

Moreover, safe-conduct is due to the person to whom it has 
been granted even outside of the territory of the grantor. For it is 
granted in derogation of the right of war, which in itself is not con- 
flned to a territory, as we have said elsewhere. 

XXIII. The favour of ransoming captives 

The ransoming of captives is in large measure an act of favour, 
especially among Christians, to whom the divine law especially 
commends this kind of compassion. ' The ransoming of captives is 
a great and glorious function of justice,' says Lactantius. The 
ransoming of captives, especially from a barbarous enemy, is called 
by Ambrose a characteristic and supreme generosity. Likewise he 
defends his own act and that of the Church, because they had broken 
up even the consecrated vessels of the Church 2 in order to redeem 

1 Digesi, XXXIX. v. 32, as corrected by the eminent scholar Antoine Favre, substituting voluero 
for volueris [Conject. Jur. Civ., Book II. xix]. 

Add Digest, XIX. ii. 4; see Cardinal Toschi, Practicae Conclusiones, 751, ht. p; Reinkingk, 
Book II, class 11, viii. 30. 

2 Augustine imitated this act of Ambrose, as Possidius relates [Life of Augustine, xxiv] ; he says 
that this was done against the worldliness on the part of some persons. Deogratias, a bishop in the 
same Africa. also irnitated the act of Ambrose, as Victor of Utica relates, I [Victor Vitensis, I. viii]. 

Hincmar, in the Life of Remigius [chap. v], relates that a consecrated vessel, which had belonged 



II. xiii 
[II. xiv. 
n-12]. 



Canon in 
Sext, 
I. iii. 5. 



842 



On the Law of War and Peace 



[Book III 



Livy, 
XXII 
[BX 1-2] . 
Livv, 
XXII 
Dxi. I]. 
[Odes, III. 
v. 14-16.] 



[Politics, 
II. ix; 
VII. xiv.] 



I. xxv. 3. 



captives. ' The ransom of captives is the adornment of sacraments,' 
he says, and he uses many other expressions to the same effect. 

XXIV. Whether ransom may be forbidden by law is explained with the 
help of a distinction 

1. These considerations lead me not to venture to approve 
without discrimination the laws which forbid the ransom of captives, 
such as existed, we read, among the ancient Romans. Some one said 
in the Roman Senate, ' In no state are captives rated more cheaply 
than in our own.' The same state is said by Livy to have had the 
least consideration for captives, even from early times. There is a 
familiar ode of Horace which touches on this subject, in which he 
calls the ransoming of captives disgraceful terms and a precedent 
dragging ruin with it, a loss added to disgrace. 

What Aristotle criticizes in the institutions of Sparta is likewise 
ordinarily held to be faulty in those of the Romans. As a matter of 
fact all their energies were directed to matters of war, as if on these 
alone the safety of the state depended. But if we should only have 
regard for considerations of humanity it would in many cases be 
better that a right which is sought in war should be lost, than 
that a great many men, 1 our relatives, in fact, or fellow countrymen, 
should be left in the most pitiable condition. 

2. Such a law, therefore, does not seem just, unless the need 
of such severity is plain, with the purpose in view that greater evils, 
or the largest possible number of evils, which are otherwise w r ith 
moral certainty inevitable, may be avoided. In case of such necessity, 
since the captives themselves, in accordance with the law of love, 
ought to bear their lot with resignation, the injunction not to set 
themselves in opposition can be laid upon them and upon others 
in accordance with the principles which we have laid down elsewhere 
in regard to the surrender of a citizen for the public good. 

XXV. Can the right to a captive be transferred ? 

According to our customs, it is true, those who are captured in 
war are not slaves. Yet I do not doubt that the right to collect 
the price of ransom from [598] a captive can be transferred from 
the party who holds the captive to another. For nature allows 
a transfer of ownership, even in things which do not have corporeal 
existence. 

to Remigius, was given to ransom captives from the Norsemen. A similar act of Rimbert, archbishop 
of Bremen, is praised by Mark Adam of Bremen in his Ecdesiastical History, chap. xxxii. The sixth 
General Council of the Church approved this in a decree inserted in Decretum, II. xii. 2. This ought 
to be added to what I have said above, III. v. 2. 

1 [600] See Zonaras [XIV. xiii. 77-8] on the very late repentance of the Emperor Mauritius 



Chap.XXl] On Good Faith during War 843 

XXVI. A ransom can be owed to several by one person 

Further, tlie same person can owe a ransom to more than one 
person if he has been let go by the first and captured by another 
before the flrst ransom has been paid. Such, in fact, are different 
debts, arising from different causes. 

XXVII. Whether an agreement can be annulled on the ground that the 
wealth of the captive was unknown 

An agreement in regard to the amount of ransom cannot be 
annulled on the ground that the captive is understood to be richer 
than was believed. By the strict law of nations, which we are in- 
vestigating, no one is compelled to make good what he has promised 
in a contract at less than a fair price, if there has been no deception. 
This can be understood from the explanations previously made con- 
cerning contracts. 

XXVIII. What goods of the captive belong to the captor 

From what we have said, that captives are not our slaves, it 
follows that there is no room for the complete acquisition which, as 
we have said elsewhere, is the essential condition of ownership over 
the person. No other property, therefore, w r iH be gained by the 
captor than what he has actually taken. 

In consequence, if the captive has something concealed on his 
person, it will not be acquired, since it has not been taken. Just so 
Paul the jurist made answer, in opposition to Brutus and Manlius, 
that a man, who has taken possession of a farm, has not taken into his 
possession a treasure which he does not know is on the farm ; for 
a person cannot possess what he does not know of. The conclusion 
from this is that property concealed on the person of a captive can 
be used in paying the price of the ransom, since ownership has in 
effect been retained. 

XXIX. Whether the heir owes the price of ransom is explained, with 
the help of a distinction 

1. This question is also commonly raised, whether a ransom 
agreed upon, but not paid before death, is due from the heir. 

The answer seems to me void of difficulty. The ransom is not 
due if the captive died in prison. There was, in fact, a condition 
attached to the promise, that the captive should be set free ; but 
a dead man is not set free. On the contrary, if the captive died 
when at liberty, the ransom is due ; for he had already gained that 
in return for which the ransom had been promised. 



844 On the Law of War and Peace [Booklll 

2. I admit that obviously the agreement can be made also with 
difTerent conditions, so that the ransom may be unreservedly due 
from the very moment of the contract, the captive being retained 
no longer as a prisoner of war, but as security for himself. On the 
contrary, the contract can be so drawn up that the payment of the 
price shall only be made if on the appointed day the captive is alive 
and free. But these conditions, as being less natural, are not to be 
assumed without clear proofs. 

XXX. Whether a person, who has been released in order to free another, 
ought to return if the other has died 

Again, the question is proposed for discussion, whether a return 

to prison is obligatory for a man who has been released under the 

agreement that he should cause another to be freed, where the other 

has anticipated release by dying. 

11. xi.22 I have said elsewhere that the act of a third party, if fairly 

nLxx. 16 ' promised, is satisfactorily performed if nothing on the part of the 

promisor is omitted, but that in the case of burdensome promises 

the promisor is obligated only to an equivalent amount. So, in the 

question under discussion, the one who has been released will not be 

bound to restore himself to custody ; for this was not the agreement, 

and the presumption in favour of liberty does not allow a tacit agree- 

ment to be understood. But the person who has been released ought 

not to get his freedom as clear profit ; he will pay the estimated 

value of what he cannot furnish. 1 For this is more in accord with 

Dig. xix. natural simplicity than what the interpreters of the Roman law set 

Dig. xii. forth in an action according to prescribed formulas and on a formal 

iv. 16. claim for restitution of a thing given for a cause, when the cause did 

not follow. 

1 Paul Balioni did not do this, when released on the condition that he restore to liberty Carvajal, 
since Carvajal died before being set free. On this account he is criticized by Mariana, Book XXX 
[XXX. xxi]. But Paruta, Book II, relates the circumstances of the deed somewhat differently. 



CHAPTER XXII 
ON THE GOOD FAITH OF SUBORDINATE POWERS IN WAR 

I. The kinds of military leaders 

As one form of public agreement, Ulpian reckons this : ' When- Dig. n. 
ever the leaders of the war make agreements with each other.' xiv * 5> 

I have said that after considering the good faith pledged by the 
highest authorities I must treat of that which subordinate officials 
pledge to one another, or to others. Either the subordinate officials 
are next to the highest authority, such as have properly been called 
generals, to whom this expression of Livy must be applied, ' And iv [xx. 6]. 
we recognize as a general only the officer under whose auspices the 
war is waged ' ; or they are officers of lower rank, whom Caesar Com- 
distinguishes as follows : ' A lieutenant-general (legatus) has one set julcivu 
of duties, a commander-in-chief (imperator) another. The one ought War, iii. 
to carry out orders ; the other, to deliberate freely on the conduct ll * 4i * 
of the whole campaign.' 

II. Hozv far an agreement made by military leaders is binding on the 
supreme authority 

In dealing with the promises of military leaders the subject 
must be viewed under two aspects ; for the question is raised whether 
such promises impose a binding obligation on the supreme authority, 
or only on the leaders themselves. 

The first point should be settled in accordance with the prin- 
ciple which I have elsewhere stated, 1 that an obligation is imposed x1.zi.z2. 
on us also by the person whom we have chosen as agent to execute 
our wishes, whether our wishes have been stated in express terms or 
are inferred from the nature of the responsibility. For the one who 
grants a power grants the means necessary for the exercise of that 
power, so far as he possesses them ; and this ought to be understood 
morally in matters pertaining to morals. In two ways, therefore, 
subordinate authorities will be able to bind the supreme authority 
by their actions, either by doing that which is thought on probable 
grounds to lie within their field of duty, or even outside their field 
of duty, in accordance with a special responsibility, known to the 
public, or to those whose interest in the matter is at stake. 

1 See Camden [p. 630], on the year 1594, relative to the sentence of Count Miranda in the case 
of Hawkins. 

8 45 



846 On the Law of War and Peace [Booklll 

III. How far such an agreement fumishes occasion for an obligation 

There are also other ways in which the supreme authority is 
obligated by a previous act of its agents, but not in such a way that 
this act should be, properly speaking, a cause, but rather an occasion, 
of obligation. This may happen in two ways, either by consent, or 
by reason of the act itself. Consent is revealed by ratification, not 
only express but also implied, that is, when the supreme authority 
knew what had been done and permitted the accomplishment of the 
acts, which cannot with probability be referred to another cause. 

11. iv. 5 \Ye have explained elsewhere how this matter proceeds. 

andxv.17. -gy reason f tne thing itself states are bound to this extent, that 

they should not become richer through another's loss, that [601] 
is, that they should either carry out the agreement, from which they 
wish to acquire gain, or renounce the gain. In regard to this prin- 

11. x. 2. ciple of equity, also, I have spoken elsewhere. And to this extent, 
and not beyond, can we accept the maxim, that whatever has been 
done to our advantage is valid. On the contrary those cannot be 
acquitted of injustice who disapprove of the agreement and yet 
retain what they would not have had without the agreement. Such 

ix. xvi a case arose when, as Valerius Maximus relates, the Roman senate 

[ix. vi. was unaD | e to a pp rove f the act of Gnaeus Domitius, and yet was 
not willing to disavow it. Many such instances occur in history. 

IV. What y if anything, has been done contrary to instructions ? Herein 
distinctions are presented 

11. . 12 1. Also we must repeat what has been said above, that whoever 

has appointed an agent is bound, even if the agent, while yet within 
the limits of his public function, has acted contrary to secret in- 
structions. 

This rule of equity was rightly followed by the Roman praetor 
in an action relating to agents, that not everything done by an agent 
is, in fact, binding on the one who appointed him, but only that 
which, within the limits of his responsibility, was done in the interest 
of the principal. If now public notice has been given, that agreements 
should not be made with him, then he will not be considered as an 

p%g. xiv. agent. If, however, the notice has been given, but is not generally 

il.xif 11 ' known, the one who appointed the agent is bound. 

H 2, 3. 4. Also the conditions of the appointment must be observed. For 

if any one has wished that an agreement be made under a certain 
condition, or with the intervention of a certain person, it will be most 
fair that the conditions under which the agent received his appoint- 
ment shall be observed. 



Chap.XXll] On Good Faith of Subordinate Powers 847 

2. The consequence of this is, that some kings or peoples are 
put under greater obligation by the agreements of their military 
leaders, others under less, in case their laws and customs are adequately 
known. But if there is doubt on these points we must follow the 
line of inference, in such a way as to understand that that is conceded 
without which there can be no proper discharge of responsibility on 
the part of the official. 

3. If a lesser official has exceeded the limit of his instructions, 
in case he is unable to make good what he has promised, he will 
himself be liable for the equivalent of the loss, unless such recovery 
is precluded by some law sufficiently well known. But if in addition 
there is deceit, that is, if the official pretended to have greater power 
than he did have, he will then both be liable for the loss caused by 
his fault and also, on account of his criminal conduct, he will be 
subject to a penalty commensurate with the crime. In the former 
case his property is liable, and, if that is not sufficient, also his work, 
or the liberty of his person. In the second case his person, or his 
property, or both are liable, according to the magnitude of the 
crime. 

Moreover, what we have said regarding deceit will be in point, 
even if any one has declared beforehand that he is unwilling to make 
himself liable, because the debt due both for the loss occasioned and 
as a just penalty is associated with the offence by a natural and not 
by a voluntary connexion. 

V. Whether in such a case the other party will be under obligation 

But since either the supreme authority, or its agent, is always 
bound, this also is certain, that the other party to the agreement is 
under obligation, and it cannot be said that the agreement is one- 
sided. 

We are done with the relation of lesser officials to their superiors. 

VI. What generals or magistrates are able to do with regard to those 
of lower rank, or on behalf of them 

Let us see also what higher officials are able to do with regard 
to those of lower rank. 

We ought not, I think, to doubt that a general may place 
a binding obligation on his soldiers, or magistrates on their fellow 
townsmen, within the limits of those powers which they are accus- 
tomed to exercise ; beyond those limits, consent would be necessary. 

On the other hand, a compact of a commander or of a magistrate Akiati, 
will, in general, be advantageous to those of lower rank in respect v^jfj. 
to matters merely expedient ; such arrangements, in fact, are suffi- 
1569.27 3 l 



8 4 8 



On the Law of War and Peace 



[Book III 



II. X. IX 

[II.xi.I4]. 



ciently understood as in their power. In respect to conditions which 
have a burden attached, the obligation is absolute within those rights 
which they are accustomed to exercise, but, beyond those, only if 
accepted. 

These provisions are in accord with the principles which we 
have elsewhere discussed, growing out of the law of nature regarding 
a stipulation in behalf of a third party. The general statements 
will now be made clearer by the presentation of particular instances. 



Tlutarch, 
Agesilaus, 
x=p. 601 

B.] 

Jugurtha 

[xxxix. 3]. 

XXXVII 

[xix. 2]. 



[II. XV. 

16-27]. 

[Livy.IX. 
ix. 7.] 



VIL Generals do not have the pozver to make peace 

It does not fall within the province of the general to conduct 
negotiations with regard to the causes or the consequences of a 
war; 1 [602] the terminating of war is, in fact, not a part of the 
waging of it. Even though the general has been placed in command 
with absolute power, that must be understood to apply only to the 
conduct of the war. The reply of Agesilaus to the Persians was : 
1 The right of decision regarding peace belongs to the state.' Sallust 
says that the senate rescinded the peace which Aulus Albinus had 
made with king Jugurtha, because he had made it without the authority 
of the senate. 

Also we find in Livy : ' How will that peace be valid which we 
shall have concluded without the authority of the senate, without 
the decree of the Roman people ? ' For that reason the Caudine 
agreement and the agreement in regard to Numantia did not bind 
the Roman people, as I have explained elsewhere. And up to this 
point the statement of Posthumius is correct : ' If there is anything 
which can be made a binding obligation on the people, all things 
can ' ; that is to say, things which do not belong to the conduct of 
warfare. That this is the meaning is shown by the preceding state- 
ments concerning surrender, concerning an agreement to abandon or 
to burn a city, and concerning a change in the form of government. 



XXIV 
[xix]. 



VIII. Whether generals may make a truce ; herein a distinction 

Not only generals in command but also officers of lower rank 
have the power to make a truce, 2 but only with those against whom 
they are fighting, or whom they are holding in a state of siege. This 
applies only to themselves and to their troops ; for other officers of 
equal rank are not bound by such a truce, as is clear from the story 
of Fabius and Marcellus in Livy. 

1 Bclisarius said to the Goths [Procopius, Gothic War, II. vi = p. 403 a] : 'For I do not have the 
right to manage the affairs of the Emperor.' 
See Paruta, Book V. 



[xiv. 10] . 



Chap. XXII] On Good Faith of Subordinate Powers 849 

IX. What security of persons, and what property, can be given by 
generals 

1. Likewise it is not within the province of generals to dispose 
of men, dominions, and territories taken in war. 

In accordance with this law Syria was taken away from Tigranes, j us tin, 
although Lucullus had given it to him. In regard to Sophonisba, XLpi.3]. 
who had been captured in war, Scipio said that the judgement and Livy, 
will of the senate and the Roman people would decide ; and so j** x 
freedom could not be given to her by Masinissa, the general by 
whom she had been captured. Over other matters, which fall under 
the head of booty, we see that some rights are granted to commanders, castrensis, 
not so much by reason of the strength of their authority as by the Deiust. 
customs of each people. But in regard to that subject we have said i.l""' 
enough previously. m.vi.15. 

2. However, it is quite within the power of generals to grant 
things which have not yet been taken, because in many cases towns 
and men surrender in war on the condition of preserving their lives, 
or of keeping also their liberty or even their property. In such 
matters circumstances generally do not afford opportunity to request 
the decision of the sovereign authority. 

For a like reason this right ought to be granted also to com- 
manders not of the highest rank, within the limits of the matters 
entrusted to their administration. When Hannibal was far away, 
Maharbal had promised to certain Romans, who had escaped from 
the battle near Trasimenus, not only their lives ' their safety ', as 
Polybius too concisely remarks but also, if they should have given pn. 
up their weapons, the privilege of departing with one suit of clothes ****&. 
each. But Hannibal detained them, alleging that ' it was not in the 
power of Maharbal, without consulting him, to give to those who 
surrendered his pledge that he would leave them uninjured and 
unharmed \ 1 The judgement of Livy on this act is, ' The pledge [xxn. 
was kept by Hannibal with Punic faith.' vl - X3 *l 

3. Consequently, in the case of Rabirius we ought to consider 
Cicero as a lawyer and not as a judge. He maintains that Rabirius [ForRa- 
had rightly killed Saturninus, whom the consul Gaius Marius had b 2 " s ' x ' 
persuaded to leave the Capitol by giving a pledge to him. ' How 

could a pledge be given ', says Cicero, ' without a decree of the 
senate ? ' And so he treats the matter as if that pledge bound Marius 
only. But Gaius Marius had received authority by a decree of the 
senate to see to it that the sovereignty and majesty of the Roman 
people should be preserved. In this power, which according to 

1 No more plausible was the evasion used in a similar case by Bayezid against the Servians of 
Crattovo, as Leunclavius relates ; Book VI. 

3 L 2 



850 On the Law of War and Peace [Booklll 

Roman custom was the highest, 1 who would deny that the right of 
granting immunity was included, if in that way every peril might be 
warded ofl from the state ? 

X. Such agreements should be interpreted narrozvly ; and zvhy 

For the rest, in dealing with the agreements made by generals, 
because these are concerned with a matter outside their field, the 
interpretation must be restricted so far as the nature of the agree- 
ment allows, lest indeed [603] by their act either the sovereign 
power be obligated to a greater degree than it wishes, or they them- 
selves suffer injury in the discharge of their duty. 

XI. Hozv a surrender accepted by a general is to be interpreted 

In consequence, one who is received in unconditional surrender 

by a general is considered to have been received on such terms that 

the decision in regard to him belongs to the victorious people or 

[Appian, king. There is an example of this in the case of Genthius, king of 

wZ?" IUyria, and in that of Perseus, king of Macedonia ; the former sur- 

ii. 9]' rendered to Anicius, the latter to Paulus. 

[Livy, 
XLV. vi. 

10.1 XII. Hozv to understand the proviso, l if the king or the people has 

approved ' 

Thus the added proviso, ' Let this be valid, in case the Roman 
people shall have ratified it ', which is often found in treaty com- 
pacts, will have the effect that, if the ratification does not follow, 
the general will himself in no respect be bound, unless in some way 
he has thereby been made richer. 

XIII. Hozv to understand the promise io surrender a tozvn 

iivy, Also those who have promised to surrender a town can allow 

^ln' *k e garrison to withdraw, as we read that the Locrians did. 

1 See Sallust, Catilinarian War [xxix. 3]. Not unlike this Ciceronian sophistry is that of 
Gonsalvo against the Duke of Valentinois; Guicciardini, Book VI [p. 339, edit. Genev., 1645]. 



CHAPTER XXIII 

ON GOOD FAITH OF PRIVATE PERSONS IN WAR 

I. Refutation of the opinion, which holds that private persons are not 
bound hy a pledge given to the enemy 

Sufficiently well known is this statement of Cicero : ' Also [On 
if, under the pressure of circumstances, individuals have promised Jn.^g]' 
anything to the enemy, faith must be kept in that very matter.' 
Whether the individuals are combatants or civilians it matters not 
as regards keeping faith. 

It is strange that legal authorities have been found who would Bartoius, 
teach that the obligation was binding when an agreement was made ^^v'' 
publicly with the enemy, but that agreements made by private zasius,' 
persons were not binding in like manner. For since private citizens **%# 
have private rights, which they can place under obligation, and Eck. 
enemies [604] are capable of acquiring right, what can stand in m. xix. 2. 
the way of the obligation ? Add that, unless this rule is established, 
opportunity is given for slaughter, an impediment is set to liberty. 
For captives in many cases will not be able to guard against the 
former, or to obtain the latter, if the good faith of private persons 
has been done away with. 

II. It is shown that private persons are bound even to a pirate and 
a brigand ; and to what extent 

Still further, not only is a pledge, which has been given to an 
enemy, recognized by the law of nations, but also a pledge to a brigand 
or to a pirate, just as we have said above in regard to public faith. 11. X i. 7 
There is this difTerence, that if an unjust fear inspired by the other 2^" L 
has induced the promise the promisor can demand restitution, or 
if the other party is unwilling to make restitution he can take it ; 
such a procedure has no place in case of a fear arising from a public oidradus, 
war, according to the law of nations. covar-' 

If an oath also has been added to the promise, then what has ruvius, 
been promised will have to be made good by the promisor, if he 
wishes to avoid the crime of perjury. If such a perjury has been n.iii.V 
committed against a public enemy, men are accustomed to punish 
it ; but if against brigands or pirates, it is overlooked, because of the 
hatred of those whose interest is at stake. 

III. No exception is here madefor a minor 

Also in this aspect of the good faith of private persons we shall 
make no exception for a minor who has sufficient intelligence to 



De Matrir 
monio, 



no. 21. 



852 On the Law of War and Peace [Booklll 

understand his act. For the privileges which favour minors arise 
from municipal law, but we are treating of the law of nations. 

IV Wheiher an error gives release 

11. xi. 6. Al so as regards an error, we have said elsewhere that it gives 

the right to withdraw from an agreement only if that which was 
erroneously believed had the force of a condition in the mind of the 
promisor. 

V. Answer to the objection raised from ihe point of view of public 
advantage 

1. It is more difficult to decide how far the power of individuals 
may extend in making an agreement. That public property cannot 
be alienated by an individual is well established. For if this right 

[iirj xxii. is not permitted even to generals in war, as I have just shown, still 
7 - less will it be permitted to private citizens. But in regard to their 

own acts and property the question can be raised because it is evident 
that these also cannot be put at the service of the enemy without 
some degree of damage. For this reason such agreements on the part 
of citizens may seem unlawful on account of the state's right of 
eminent domain, and on the part of enrolled soldiers on account of 
their military oath. 

2. It must be understood, however, that agreements which 
avoid a greater or more certain evil ought to be considered advan- 
tageous rather than harmful to the public interest, because a lesser 

Punk evil assumes the appearance of an advantage. ' Of evils one ought 

[xit[*94]. t0 cnoose the lesser ', a certain speaker says in Appian. In fact neither 
an act of sincere good faith, by which one does not yield absolute 
power over himself and his possessions, nor the public advantage 
without the authority of law, can render void and deprive of all 
legal effect that which has been done, even if it is granted that this 
was done contrary to duty. 

3. A law may indeed deprive either permanent or temporary 
subjects of such power. But the law does not always do this, because 
it spares the citizens ; and it cannot do this in all cases, for the reason 

7, 21 that human laws, as I have said elsewhere, have the power of imposing 
L^3] V ; ii. bligation only if they have been passed in a humane manner, and 
xiv. 12. not if they impose a burden which is plainly inconsistent with reason 
and nature. And so special ordinances and orders, which openly 
claim some such right, ought not to be considered as laws. Moreover, 
general laws ought to be received with so benevolent an interpreta- 
tion as to exclude misfortunes arising from extreme necessity. 



Chap. XXIII] On Good Faith of Private Persons 



853 



4. But if the act of the private person, which had been for- 
bidden by law or by an order and prevented from becoming valid, 
could rightly have been forbidden, then the act of the individual 
would be void. Nevertheless he could be punished on this account, 
because he promised what was not within his right ; and especially, 
if he promised it on oath. 



[605] * VI. The previous statements are applied to a pledge given of 
return to prison 

The promise of a captive to return to prison is properly allow- 
able ; for it does not render the condition of the captive worse. 
Therefore Marcus Atilius Regulus did not merely act nobly, as some 
think, but also as his duty required. Cicero says : ' It was the duty 
of Regulus not to disturb by perjury the conditions and agreements 
of war.' And no obstacle to his return was presented by this con- 
sideration : 

But yet he knew what tortures 

The barbarous executioner was making ready ; 

for he had known when he made the promise that this might happen. 
Likewise, also, of the ten captives, as Gellius tells the story from 
ancient authors, ' Eight replied that they had no right to postliminy, 
since they were bound by oath.' 2 



On Duties, 
III [xxix. 
108]. 



Horace 
[Odes, III. 
v. 49-50]. 



VII. xviii 
[VI. xviii. 

q. 



VII. Tbe pledge not to return to a certain place ; the pledge not to 
serve as a soldier 

1. It is also customary for prisoners to promise not to return 
to a certain place, and not to take up arms against the one who had 
them in his power. An example of the former kind of pledge is found 

in Thucydides, where the people of Ithome promise the Lacedae- [Ldtt.] 
monians that they will leave the Peloponnesus never to return. 

Instances of the second kind of pledge are now frequent.^ An 
ancient example is to be found in Polybius, where the Numidians 
are released by Hamilcar on the condition that none of them will 
bear hostile arms against the Carthaginians. Procopius 3 in the 
Gothic War records a similar agreement. 

2. Some writers declare such an agreement void, because it is 
contrary to the duty due to the country of allegiance. But whatever 
is contrary to duty is not at once also void, as I have said just aboye 
and elsewhere. Then, too, it is not contrary to duty to obtain 

1 [In the 1646 edition, sections 6, 7, 8, 9, 10 and n are numbered 7, 8, 9, 10, n and 12, and 
section 12 is run in in the last of those here enumerated.] 

2 That is, lacking civil rights, as Horace [Odes, III. v. 42] says of Regulus. 

3 Gothic War, II [II. xiv], about the Herulians. 



I [lxxviii. 
14]. 

III [xxxvi 

= P- 552 

c]. 



854 On the Law of War and Peace [Booklll 

liberty for oneself by promising what is already in the hands of the 
enemy. The cause of one's countiy is, in fact, none the worse thereby, 
since he who has been captured must be considered as having already 
perished, unless he is set free. 

VIII. The pledge not to run azvay 

Some prisoners also promise not to run away. Contrary to the 
opinion of certain writers, such a pledge is binding on them, even 
though they made the promise when in chains. For in this way 
either lives are ordinarily saved, or milder captivity secured. If, 
however, the prisoner shall be put in chains afterward, then he will 
be released from the promise, if it was made on the condition that he 
should not be put in chains. 

IX. One who has been captured cannot surrender to another 

Rather foolishly the question is raised, whether one who has 
been captured can surrender to another. 

It is quite certain that no one by his own agreement can take 

away a right gained by another. But the captor has gained a right, 

either by the law of war alone, or partly by the law of war and partly 

111. vi. by the consent of him who is waging the war, as I have explained 

23 *' above. 



X. Whetber private persons should be compelled by their rulers to carry 
out zvhat they have promised 

Regarding the effect of agreements an important question is, 
whether private persons, in case they are negligent, ought to be com- 
pelled by their rulers to fulfil their promises. 

It is nearer the truth to say that they should be compelled to 
do so only in regular warfare, on account of the law of nations by 
which those who wage war are bound to render justice to each other, 
even in regard to the acts of individuals ; a case in point would be 
if envoys of the enemy should be injured by private citizens. 
vin. \ Thus, according to the statement of Gellius, Cornelius Nepos 

r^- xvm - wrote that many in the senate voted l that those of the ten captives 
who were unwilling to return should be put under guard and taken 
back to Hannibal. 

1 In likc manner already earlier the senate had obliged those to return whom Pyrrhus had released 
conditionally ; Appian, Selections on Embassies, vi [=Samnite Hislory, x. 5]. 



Chap. XXIII] On Good Faith of Private Persons 



855 



XI. What kind of an interpretation ought to be applied in agreements 
of this sort 

In the matter of interpretation, the mles should be observed 
which have already been mentioned several times, to wit : that we 
should not depart from the natural meanings of the words except in 
order to avoid an absurdity, or from some quite satisfactory surmise 
as to the intention ; and that in case of doubt we should be more 
inclined to interpret the words against the one who made the con- 
dition. 



II. xvi. 2 

III. xx. 
26. 



XII. In zvhat way we are to interpret the terms life, clothing, and the 
arrival of aid 

One who has made an agreement regarding his life does not 
have the right to liberty also. 

Arms are not included under the term clothing ; for these are 
different things. 

Aid is rightly said to have arrived if it is in [606] sight, 
although it is doing nothing ; for its very presence has an influence. 



XIII. Who ought to be said to have returned to the enemy 

One who has returned secretly, so as to depart immediately, 
will not be said to have returned to the enemy. For returning ought 
to be understood as coming a second time under the power of the 
enemy. 

Cicero held the opposite interpretation to be disingenuous and 
foolishly crafty, since it involves deceit and perjury. Gellius called 
it fraudulent cleverness, branded with disgrace by the censor ; and 
he characterizes those who had practised it as odious and detestable. 



On Duties, 
III [xxxii. 

113]. 

VIII. xix. 
[VI. xviii. 
10]. 



XIV. What are adequate reinforcements in the case of a surrender 
made conditionally ? 

In the case of an agreement to surrender, 1 which shall not hold 
if adequate reinforcements have arrived, the reinforcements ought 
to be understood to be such as will cause the danger to cease. 

1 There are four examples of a treaty of this kind in the Gothic War of Procopius, III [III. vii, 
xii, xxx, xxxvii]. There is another in Agathias, I [I. xii=p. 23 a], concerning Luca. Another concerning 
a castle in Corsica is in Bizarri, History ofGenoa, Book X ; others in Book XVIII and in the war against 
the Moors. Kromer, Book XI, also has a similar instance. 



856 On the Law of War and Peace [Booklll 

XV. Whatever pertains to the execution of an agreement does not con- 
stitute a condition 

This also must be noted, that if any covenant has been made 
regarding the method of execution this adds no condition to the 
agreement. The case is as if they said that payment is to be made 
in a certain place, which afterward changed ownership. 

XVI. Regarding hostages given for such agreements 

In regard to hostages the position must be maintained which 
iii. xx. we stated above, that in most cases they are merely accessory to the 
58, principal act. Nevertheless the agreement can be so made that the 

obligation shall present an alternative, that is, either that something 
shall be done, or that the hostage shall be retained. But in case of 
doubt we must maintain what is most natural, that is, that the 
hostages shall be believed to be only accessory. 



CHAPTER XXIV 



ON IMPLIED GOOD FAITH 
I. How goodfaith may be tacitly interposed 

It was well said by Javolenus, that certain things are agreed to 
by silence ; and this is found to be the case in public agreements, 
in private agreements, and in mixed agreements. 

The reason is that consent, no matter how indicated and accepted, 
has the power of transferring a right. But there are also other signs 
of consent besides spoken and written words, as we have already 
more than once indicated. And certain signs by nature form a part 
of the act. 



Digesi, 
XIX. ii. 
5i. 



II.iv.4; 
III. ii. 8 
[III. i. 8]. 



II. An example, in the case of a person who desires to be received under 
the protection of a people or a king 

An example may be found in the case of the person who comes 
either from the enemy or from a foreign country and entrusts him- 
self to the good faith of another people or king. For there ought to 
be no doubt that such a person tacitly binds himself to do nothing 
against that government under which he seeks protection. 

[607] Consequently we ought not to follow those who say that 
the act of Zopyrus was free from blame ; for his f aithfulness toward 
his king did not excuse his treachery toward those to whom he had 
fled. The same should be said of Sextus, the son of Tarquin, who 
fled to Gabii. About Sinon Virgil says : 

Hear now the plots of Greeks, and from the crime of one 
Learn to know all Greeks. 

III. An example, in the case of one who asks or grants a parley 

Likewise the person who asks or grants a parley tacitly promises l 
that it will be without hurt to those who take part in it. 

Livy declares that the law of nations is violated by doing harm 
to the enemy under the pretence of a parley ; he adds, that the 
good faith of a parley was treacherously violated (for the reading 
' through faith ' (perjidem) in that passage is faulty), because Gnaeus 
Domitius placed in chains Bituitus, king of the Averni, after Domitius 
had invited him to a pretended conference and had received him 

1 [608] Deservedly Agathias, Book II [II. xiv=p. 50 c], censures the Hun Ragnans, because 
he tried to kill Narses with a spear as Narses was going away frorn a conference. 

857 



[Herodo- 
tus, III. 
cliv.] 
[Justin, 
I. x. 15.] 
Livy, 

I[liii.5]. 
Aeneid, II 
[65-6]. 



858 



On the Law of War and Peace 



[Book III 



X. vi [IX. 
vi. 3]. 



[VIII. 
xxiii. 3.] 



in hospitality. This judgement is passed on Domitius by Valerius 
Maximus : * His excessive desire for fame made him treacherous.' 

Wherefore one must wonder why the writer of the eighth book 
of Caesar's Gallic War, whether Hirtius or Oppius, in referring to 
a similar deed of Titus Labienus adds, ' He judged that the faith- 
lessness of this man ', that is, Commius, ' could be suppressed without 
any act of treachery,' unless the explanation is that this is the opinion 
of Labienus rather than of the writer. 



Livv, 
XLII 
[xlvii.xff.] 

III.ii.6ff. 
[III. i. 
6ff.] 



Livy, 

[xvii] and 
XXX 

[iv]. 

I. v [17]. 



IV. Nevertheless he who asks or grants a parley is not hindered from 
promoting his own interests, provided that he does not harm the other 
party to the conference 

But that implied consent must not be extended beyond what 
I have said. For, provided that the parties to the conference suffer 
no harm, it is not treacherous, but reckoned among honourable 
artifices, to divert the enemy from warlike plans by the pretext of 
a parley, and in the meantime to promote one's own advantage. 

Those, therefore, who maintained that King Perseus was deceived 
by the hope of peace, took into consideration not so much right 
and good faith as highmindedness and warlike glory ; and this can 
be well understood from what we have said concerning stratagems 
in war. Of the same general character was the ruse by which Hasdrubal 
saved his army from the Ausetanian defiles, and that by which Scipio 
Africanus the Elder learned the location of the camp of Syphax ; 
both of these instances are related by Livy. Their example was 
followed by Lucius Sulla l also in the Social War, near Esernia, as 
we read in Frontinus. 

V. Of mute signs which by custom have some meaning 

There are also certain mute signs which have a significance 
arising from custom. Such were in ancient times the use of fillets 
and olive branches ; among the Macedonians the raising of spears, 
among the Romans the placing of shields over the heads, 2 all signs 
of a suppliant surrender, 3 which in consequence imposed the obliga- 
tion to lay down arms. But whether one who indicates that he 

1 Also the Dictator Caesar against the Tencteri and Usipetes ; Appian, Selections on Embassies, xvi 
[= Gallic Hislory, xviii]. 

* Appian, Civil Wars, II [vi. 42]. 

* Arnong the Persians the hands were clasped behind the back ; Ammianus Marcellinus, Book 
XVIII [XVJII. viii. 4] ; see also the notes of Lindenbrog on this passage. The same Ammianus, 
Book XXVI [XXVI. ix. 7], notes that the shields and standards were reversed among the Romans. 
Latinus Pacatus, Pamgyric [xxxvi]. says that they lowered the flags. 

The ancient Germans and others, f ollowing their example, offered grass, as Pliny states, Book XXII 
[XXII. iv. 8]. Servius, On the Aemid, I [I. 487], says that those who surrender themselves as con- 
quered lay down their arms as suppliants. 



Chap.XXlV] On Implied Good Faith 859 

accepts such a surrender is under obligation, and how far, should 
be inferred from what I have said above. m. iv. 12 

At the present time white flags * are the implied sign of a request and xu I5 ' 
for a parley ; they will, therefore, be no less binding than if the 
parley had been requested by word of mouth. 

VI. On the implied approval of a treaty compact 

How far a treaty compact made by generals ought to be con- 
sidered as impliedly approved by the people or king, I have already 11. xv. 17 
stated above, to wit : when both the action was known and some- * " L 
thing was done or not done for which no other cause could be assigned 
except the wish to ratify the treaty. 

VII. When a punishment is impliedly remitted 

The remission of a penalty 2 cannot be inferred from the sole 
fact of its being disregarded. There is need, besides, of some such 
act as either in itself may show friendship, as a treaty of friendship, 
or such as will express so high an opinion of the virtue of the party 
subject to punishment that his previous deeds ought deservedly to 
be pardoned ; whether that opinion is expressed in words, or through 
acts, which customarily have such significance. 

1 Among the northern peoples the lighting of a fire was a sign that a parley was requested, as 
Johan Magnus and others state. Pliny, in Book XV. xxx [XV. xxx. 133], says of the laurel : ' It 
is itself the bringer of peace, so that, when it is presented, it becomes also a sign of cessation of hostilities 
between armed foes.' 

2 Polybius, in a passage preserved in the Selections on Embassies, xxii [= XXIII. vi], discusses 
the question whether punishment is remitted to those who committed the act at the same time that 
it is remitted to the instigators. I do not think that it is, for individuals are answerable for their own 
misdeeds. 



CHAPTER XXV 

CONCLUSION, WITH ADMONITIONS ON BEHALF OF GOOD FAITH AND 

PEACE 



On Dutus, 
III [II. 
xxiv. 84]. 
Rfutoric, 
I. xv [22]. 

For 

Quintus 

Roscius 

[vi. 16]. 

LetUrs, 

Ixxxviii 

[29]. 



I. Admonitions to preserve peace 

At this point I think that I can bring my work to an end, not 
because all has been said that could be said, but because sufficient 
has been said to lay the foundations. Whoever may wish to build 
on these foundations a more imposing structure will not only find 
me free from envy, but will have my sincere gratitude. 

Yet before I dismiss the reader I shall add a few admonitions 
which may be of value in war, and after war, for the preservation 
of good faith and of peace ; just as in treating of the commencement 
of war I added certain admonitions regarding the avoidance of wars, 
so far as this can be accomplished. 

And good faith should be preserved, not only for other reasons 
but also in order that the hope of peace may not be done away with. 
For not only is every state sustained by good faith, as Cicero declares, 
but also that greater society of states. Aristotle truly says that, if 
good faith has been taken away, ' all intercourse among men ceases 
to exist'. 

Rightly the same Cicero says that ' it is an impious act to destroy 
the good faith which holds life together '. To use Seneca's phrase, 
it is ' the most exalted good of the human heart '. And this good 
faith the supreme rulers of men ought so much the more earnestly 
than others to maintain as they violate it with greater impunity ; 
[609] if good faith shall be done away with, they will be like wild 
beasts, 1 whose violence all men fear. Justice, it is true, in its other 
aspects often contains elements of obscurity ; but the bond of good 
faith is in itself plain to see, nay more, it is brought into use to so 
great an extent that it removes all obscurity from business transac- 
tions. 

It is, then, all the more the duty of kings to cherish good faith 
scrupulously, first for conscience's sake, and then also for the sake of 



1 According to Procopius, Persian War, II [II. x], the ambassadors of Justinian thus address 
Chosroes : 

Unless, king, this address were being made to you in person, we should never have believed 
that Chosroes, son of Cabades, would have entered Roman territory in arms af ter first scorning the 
swora oaths, which are believed to be the highest and strongest pledge of truth and good faith among 
men ; and besides, after breaking the treaty, in which rests the only hope left for those who are 
not living in safety on account of the evils of war. 

What else should we say that this is, than to exchange the life of men for the life of wild beasts ? 
For when treaties have been done away with it will follow that all peoples will wage unending 
wan with one another. But unending wars have the eff ect, that they keep men continuously estranged 
from their own nature. 

860 



Chap. XXV] 



Conclusion 



861 



the reputation by which the authority of the royal power is sup- 
ported. Therefore let them not doubt that those who instil in them 
the arts of deception are doing the very thing which they teach. 
For that teaching cannot long prosper which makes a man anti- 
social with his kind and also hateful in the sight of God. 



II. In war peace should always be kept in view 

Again, during the entire period of administration of a war the 
soul cannot be kept serene and trusting in God unless it is always 
looking forward to peace. Sallust most truly said, ' The wise wage 
war for the sake of peace.' With this the opinion of Augustine 
agrees : ' Peace is not sought that war may be followed, but war is 
waged that peace may be secured.' Aristotle himself more than once 
condemns those nations which made warlike pursuits, as it were, 
their end and aim. Violence is characteristic of wild beasts, and 
violence is most manifest in war ; wherefore the more diligently 
eflort should be put forth that it be tempered with humanity, lest 
by imitating wild beasts too much we forget to be human. 



To Caesar 

On Pub. 

Admin. 

[I. vi. 2]. 

Letters, i 

[clxxxix. 

6], 

To 

Boniface. 

Politics, 

VII. ii [9] 

and xiv 

[11]. 



III. And peace should also be accepted even at a loss, especially by 
Christians 

If, then, it is possible to have peace with sufficient safety, it is 
well established by condonation of offences, damages, and expenses ; 
this holds especially among Christians, on whom the Lord has bestowed 
His peace. And His best interpreter wishes us, so far as it is possible 
and within our power, to seek peace with all men. It is characteristic 
of a good man, as we read in Sallust, to be unwilling to begin war, 
not gladly to pursue it to the bitter end. 

IV. The consideration stated is useful to the conquered 

This one consideration ought to be sufficient. However, human 
advantage also often draws in the same direction, first, those who 
are weaker, because a long contest with a stronger opponent is 
dangerous, and, just as on a ship, a greater misfortune must be 
avoided at some loss, with complete disregard of anger and hope 
which, as Livy has rightly said, are deceitful advisers. The thought 
is expressed by Aristotle thus i 1 ' It is better to relinquish something 
of one's possessions to those who are stronger, than to be conquered 
in war and perish with the property.' 



Romans, 
xii. 18. 

[= Cicero, 
Letters to 
Friends, 
IV. vii. 2.] 



[VII. xl. 
19.] 

[Rhetoric 
to Alex- 
ander, ii.] 



1 Philo, De Constilutione Principis [On Justice, xiii], says: Peace, even though with great loss, 
is better than war.' 



862 



On the Law of War and Peace 



[Book III 



[XXX. 

xxx. 18.] 



[Rhetoric 
toAUx- 
ander, ii.] 

[XIII. 
liii.] 



Civil War, 
I [III. x]. 



V. The consideration stated is also usejul to the conqueror 

Again, human advantage draws in the same direction also the 
stronger. The reason is, as the same Livy no less truly says, that 
peace is bounteous and creditable to those who grant it while their 
aflairs are prosperous ; and it is better and safer than a victory that 
is hoped for. It must be kept in mind that Mars is on both sides. 
As Aristotle says, * In war men ought to consider how many and how 
unexpected changes are wont to occur.' In a certain oration for 
peace in Diodorus Siculus those are censured who magnify the great- 
ness of their exploits, as if it were not evidently customary for the 
fortune of war to bestow favours alternately. And especially must 
the boldness of the desperate be feared ; l wild beasts bite most 
fiercely when dying. 

VI. The consideration stated is useful likewise to those whose fortunes 
are in doubt 

But, if both sides seem to be equal to each other, this in truth, 
as Caesar says, is the best time to treat of peace, while each has con- 
fidence in himself. 



[For 

Gabinius, 

frag., in 

Jerome, 

Apology 

against 

Rufinus, 

Li.j 



VII. Peace, when made, must be kept with the utmost scruple 

Moreover peace, whatever the terms on which it is made, 
ought to be preserved absolutely, on account of the sacredness of 
good faith, which I have mentioned ; and not [610] only should 
treachery be anxiously avoided, but everything else that may arouse 
anger. What Cicero said about private friendships you may apply 
to public friendships no less correctly : not only should all friend- 
ships be safeguarded with the greatest devotion and good faith, but 
especially those which have been restored to goodwill after enmity. 

VIII. A prayer, and the end of the work 

May God, who alone hath the power, inscribe these teachings 
on the hearts of those who hold sway over the Christian world. 
May He grant to them a mind possessing knowledge of divine and 
human law, and having ever before it the reflection that it hath 
been chosen as a servant for the rule of man, 2 the living thing most 
dear to God. 



1 [Plutarch, Marius, xlv= p. 432 c :] 

We even have tc fear the dying lion's den. 
* So Chrysostom in his sermon On Alms [beginning] : Man is the being dearest to God.' 



APPENDIX 

FROM THE LIFE OF ST. LOUIS, KING OF FRANCE, BY JOINVILLE, 

CHAPTER LXXXIX 

Those who were in the Great Council of the king would often 
reprove him because he expended so much labour upon the restora- 
tion of peace among those outside his realm, saying that he was 
making a mistake in not permitting them to wage war, and that 
later this would result in their being dealt with more easily. 

The king would reply that they were wrong. ' If ', he said, 
1 the princes and rulers, who are my neighbours, should see that 
I readily allowed them to wage wars with one another, they would 
say to one another, " The king of France allows us to wage war with 
evil intent ", and in consequence they would conceive a hatred of 
me and at some time would attack me ; and from this source mis- 
fortune would result for my kingdom. Besides, it could happen that 
I should bring upon myself the wrath of God, since God says that 
those are blessed who strive to recall the hostile to peace and har- 
mony.' 

I am able to affirm that the Burgundians and Lotharingians, 
perceiving the goodness and justice of the king, were so devoted to 
him and so respected him, that they settled in his presence the causes 
of controversy which arose between them. I saw them often coming, 
now to Paris, now to Rheims, now to Melun, and again to other places, 
where the king was. 



FROM THE LIFE OF THE SAME, IN CONNEXION WITH THE INJUNCTIONS 
OF ST. LOUIS THE KING GIVEN TO HIS SON 

From the records of the Collegium Rationalium in the city of Paris 

If any suit or action at law is commenced against you, inquire 
as fully into the truth against you as for you. 

If you perceive that you have anything belonging to another, 
which it is established that you or your ancestors have taken, cause 
it to be restored immediately. 

Do not wage war against any Christian except on the advice 
1569.27 3 m 863 



864 Appendix 



of many, and only if you cannot avoid war. But if you are at war, 
refrain from injuring the clergy and those who have done you no 
harm. 

If war or quarrellings arise among your subjects, bring them back 
to harmony, as soon as this can be done. 

Examine often, what your bailirTs, prefects, and other officials 
are doing, and inquire into their acts, in order that you may correct 
whatever ought to be corrected. See to it that no disgraceful sin 
hold sway in your kingdom. 



COMMENTARY 

OF 

HUGO GROTIUS 

ON 

THE EPISTLE OF PAUL THE APOSTLE 
TO PHILEMON 



3 M 2 



[6i 2 ] THE PRINTER TO THE READER 

Since about this time there came into our hands the commentary 
of the same author on the Epistle of Paul to Philemon, we thought 
best to give it a place here, not only that it might be preserved along 
with the larger work, but also because it contains some matter not 
foreign to the subjects which are treated in that work, in Book I, 
chapter ii, and Book III, chapters vii and xiv. 



[N O T E S 

ON 

THE EPISTLE OF PAUL TO PHILEMON] 

1. IIcu)\o5 Seo-fiLos XpLcrTov 'Irjcrov, ' Paul, a prisoner of Jesus 
Christ '. At Rome, living under guard of a soldier, who was bound 
with the same chain ; Acts, xxviii. 16. The genitive here indicates 
cause ; so also below, verse 9, Epbesians, iii. 1, and 2 Timotby, i. 8. In 
Ephesians, iv. I, Sccr/uos ev KvpLcp, ' prisoner in the Lord ', instead. 

kcu Tuxdfeos 6 dSeX^ds, ' and brother Timothy '. The Chris- 
tians called one another ' brother ' because of a common regeneration. 
Timothy almost always a companion of Paul, as may be seen in 
2 Timotby, iii. 10 was with him also in Rome ; Epbesians [Philip- 
pians\ i. 1, Colossians, i. 1. 

<&L\ifjfiovL tco dyaTTTjTco, ' to Philemon dearly beloved '. The 
name Philemon is Greek. This was the name also of a poet of merit, 
and of a writer on natural history who is mentioned by Pliny. Philemon 
seems to have lived at Ephesus, where Onesimus afterward held the 
office of bishop, as Ignatius in his Letters and other writers bear 
witness. Paul calls him ' dearly beloved ', or ' most dear ', because 
he considered Philemon, as an exceedingly devout man, in a relation 
of more intimate friendship. 

koI avvepyco rjficov, 6 and our fellow-worker '. That is, as one 
of the presbyters, of whom there were several at Ephesus ; Acts, 
xx. 17. The Apostles applied the term ' fellow-workers ' to all the 
presbyters (7rpeo-/3vTepoL) and also to the elderly women (Trpeo-fivTLSes) 
who sought to bring women to Christ ; Romans, xvi. 3, 9, Pbilippians, 
ii. 25, Colossians, iv. 11. 

2. /ccu 5 A7r</>t<x 777 dyaTT7)Trj, ' and to Appia dearly beloved '. 
The name Appia is Roman, tt being changed to <f> according to 
Hebrew usage. 

Kal 'ApxLTnrcp tco crvcTTpaTLcoTrj fjfjicov, ' and to Archippus our 
fellow-soldier '. He seems to have served as an evangelist, now at 
Ephesus, now at Colossae [613] ; Colossians, iv. 17. The testimony 
of Ambrose indicates that Archippus afterward took up his residence 
at Colossae, and so was made a bishop. Paul was wont to call his 
helpers ' fellow-soldiers ' on account of the burdensomeness of the 
task, as may be seen by referring to Pbilippians, ii. 25. 

kcll 777 Kar olkov ctov eKKkrjCTLa, ' and to the church which 
is in thine house '. The reference must be to Philemon, to whom 

867 



868 Notes on the Epistle of Paul to Philemon 

this epistle is chiefly addressed. In his house there were several 
Christians. According to Tertullian even three Christians constitute 
a church. Similarly, those who were in the house of Aquila and 
Priscilla are called a church, Romans, xv. 15 [xvi. 5], and 1 Corinthians, 
xvi. 19 ; also, those who were in the house of Nymphas, Colossians, 
iv. 15. 

3. X < *P L '* vpWi KaL tlprjvrj arrb (deov irar pbs rjjxcov, koli Kvpiov 
'lrjcrov XpicrTov, ' grace to you and peace from God our father, 
and the Lord Jesus Christ \ He prays for the favour of God 
and of Christ on their behalf, and for prosperity in all things, which 
the Jews are accustomed to designate by the word ' peace \ Paul 
frequently uses this prayer, as 1 Corinthians, i. 3, 2 Corinthians, i. 2, 
Galatians, i. 3, Ephesians, i. 2, Colossians, i. 2, j Thessalonians, i. 1. 

4. Euxa/Hcrraj tw eo> fxov, ' I thank my God \ We ought to 
give thanks to God for gifts conferred not only on ourselves but also 
on others ; Romans, i. 8, J Corinthians, i. 4, Ephesians, i. 16. 

irdvTOTe p.veiav crov 7roiov(JLevo<; eVl to>v 7rpocrev)(o)v jxov, ' always 
making mention of thee in my prayers '. We find the same words 
in the verse last referred to, Ephesians, i. 16 ; whence we may 
learn that under rrpoaevyaU ' prayers \ here are included all utter- 
ances addressed to God, even those in which no petition is offered 
but thanks are given. 

5. olkovcov crov ttjv ayaTTTjv Kal tt)v tticttiv, ( hearing of thy 
love and faith '. He states the reason for the giving of thanks, such 
as you will find also in the verses already referred to : Romans, i. 8 ; 
j Corinthians, i. 4 ; Ephesians, i. 16. Here a noble pair is named, 
love and faith. See J Corinthians, xiii ; Galatia?is, v. 6 ; Ephesians, 
vi. 23 ; J Thessalonians, iii. 6; J Timothy, i. 14 and vi. 11 ; 2 Timothy, 
i. 13 and ii. 22. 

y)v e^et? 7rpo5 tov Kvpiov 'lrjcrovv, ' which thou hast toward 
the Lord Jesus '. This has reference to faith. 

Kal et<? TTavra^ tovs ayiovs, ' and toward all the saints '. 
This has reference to love. All Christians are called ' saints ', as 
Ephesians, u 1, and frequently elsewhere. 

6. 07TOJ9 r) KOLvoivia ttJ? wicrTeojs crov ivepyrjs yevrjTai ev eiriyvojcrei 
7tcu>to9 epyov dyaOov tov ev v/xlv et9 XpLcrrbv 'lirjcrovv, ' that the 
fellowship of thy faith may become effectual in the knowledge of 
every good work which is in you unto Christ Jesus '. First, there 
is a transposition here. For the words eU XpicrTov 'irjcrovv, ' unto 
Christ Jesus ', relate to the preceding words 7779 iricrTeo)<; crov, ' of thy 
faith '. Then, Koivtovia T779 nicrTeojs, ' the fellowship of faith ', was 
put in place of ' the faith which was common ' to Philemon and 
the other Christians. And ev emyvoicrei, ' in the knowledge ', is 
here to be taken TraQr)TiKo\%\, ' in a passive sense ', and carries the 



Notes on the Epistle of Paul to Philemon 869 



signification of becoming known. The meaning, then, is : Thy love 
had this^ in view, that the faith, which thou hast in common with the 
other saints, should become effectual, and thus should be made known 
through the good works which proceed from thee and from others. 
'Evepyr)s ^ yevrjraL, * should become effectual ', is here used with 
the same implication as 7rtcrTt9 81 dydirr)<; ivepyovfxevr), c faith working 
through love ', Galatians, v. 6. Thence follows eViyi/owris, that is, 
the making known of the same faith ; for faith is shown through 
works, James, ii. 18. 

7. Xapdv ydp eypixev 7ro\\r)v koX TrapdWiqcrLV, ' For we have 
great joy and comfort '. Justly, he says, we thank God for those 
virtues of yours, because from that source come to us our greatest 
joy and [614] a solace in the evils which we endure for the sake 
of the Gospel. So also 2 Corintbians, viL 4, 13 ; 1 Thessalonians, iii. 7. 

otl ra cnr\dyxya tcov dyCcov dvaTrhtavTai Sict croO, ctSeXc^e', 
1 because the bowels of the saints have been refreshed through thee, 
brother '. ^7r\dyyya, * bowels ', is here used instegd of the word for 
' soul ', as Sirach [Ecclesiasticus\ xxx. 7, xxxiii. 5. Consequently, 
dvaireTravTaL to. o-TrXdy^ya, * the bowels have been refreshed ', and 
dvaTravcrov jxov tcl cr7rXcty^z/a, ' refresh my bowels ', in verse 20 below, 
have a meaning similar to dviiravo-av to ifibv 7rvevfxa, c they refreshed 
my spirit ', in J Corintbians, xvi. 18. The poor, he says, are of tranquil 
mind, because they have learned by experience that in thy riches a 
resource has been provided against their necessities. 

8. Ato 7ro\kr)v iv XyotcrTa> Trapprjcriav eyoyv iTTLTacrcreLv crot to 
dvrJKov, 6 Wherefore, though I have much boldness in Christ to enjoin 
that which is thy duty.' The calling of an Apostle laid upon me by 
Christ gives me this right, to be able to enjoin upon thee and other 
Christians the things that it is your duty to do. The word Trapprjo-La, 
6 boldness ', went over from Greek speech to Syrian with a broader 
meaning, so that it often signifies ' right ', ' authority \ 

9. Stct ttjv dya7rr)v fxaWov 7rapaKa\co, ' on the ground of love 
rather I beseech '. I prefer to entreat as a friend, by reason of the 
close relation of our friendship. 

tolovtos a>v, ' since I am such '. That is, I have recourse to 
entreaty, since I am such as you know me to be. 

o>s IlauXo?, ' Paul, to be sure '. Founder of so many churches. 

7TpeorfivTr)<;, ' an old man '. One already advanced in years, to 
whom even strangers concede many things. 

vvv Se Acat Secr/ttog 'Irjcrov XpLcrrov, ' and now moreover a 
prisoner of Jesus Christ ' that is, a prisoner on account of Christ, 
as we said above [note on verse 1]. Great consideration is due to 
those who suffer hardships for very honourable causes ; Colossians, 
iv. 18 ; Ephesians, iv. 1. 



870 Notes on the Epistle of Paul to Philemon 

10. wapaKaXa) cre, ' I beseech thee '. YlapaKaXa) cre here has the 
connotation of entreating, or rather of interceding. If slaves had 
committed any fault they were wont to arrange for an intercessor on 
their behalf, as Donatus suggests in a note to Terence [On Terence's 
Phormio, line 140]. Similar to this intercession is that of Pliny on 
behalf of a freedman of Sabinianus ; Lettcrs, IX. xxi. 

irepl tov ifiov tckvov, bv iyevvqcra iv toIs Secr/xot? /xou, ' on 
behalf of my child, whom I have begotten in my bonds '. Whom 
here at Rome, while I was a prisoner, I made a Christian. The rebirth 
of a man is the work of God. But so great is His goodness that He 
admits His servants to a participation in His name ; 1 Corinthians, 
iv. 15 ; Galatians, iv. 19. So likewise the Apostles are said ' to save ', 
acj^eiv, Romans, xi. 14, and elsewhere, and 1 Corinthians, vii. 16. 

[11.] tov 7rore croi a^prjcrTov, ' who once was of no use to 
thee '. It is the practice of intercessors to soften the harshness of 
the offence by words. Onesimus had not merely been ' of no use ' 
to Philemon, he had also caused a loss to him. Flight and theft are 
commonly associated. Thus in the Code of Justinian the title On 
runaway slaves [VI. i] is followed by that On thefts [VI. ii]. Says 
Martial [Epigrams, XI. liv. 5-6] : 

The froward hands from feet have learned to sin ; 
No marvel is the thief who was a runaway. 

And those who were offering a slave for sale were accustomed to 
give assurance that he was not a thief nor a runaway ; [615] Digest, 1 
XVIII. i. 13 and 34. 3 ; XLVII. vi. 1 and 3 ; XIX. i. 11. 7 and 13. 1 ; 
Yarro, On Farming, Book II [II. x. 5] ; Seneca, Controversies, III. xxi 
[VII. vi. 23]. 

12. vvvl 8e' ctol, Kal i/xol evy^p-qaTov, ' but now useful to thee 
and to me '. Because he was useful to Paul, he was useful also 
to Philemon. For ' the possessions of friends ', tol tcov <f>Lka)v, are 
in common. There is a word-play on the name Onesimus [the 
Greek name 'Ojnfcri/xos means ' profitable ', ' helpful ']. 

bv avenefxxpa, s whom I have sent back '. Doubtless with this 
Epistle. 

av Se avTov, TOVTecrTi tol e/xa crnXdy^va, 7Tpocr\af3ov, * do thou, 
then, receive him that is mine own bowels '. Ylpocr\afx/3dvecr6 ai 
has various meanings, all of which refer to kindly feeling and acts 
of kindness, as is clear from Acts, xviii. 26, Romans, xiv. 1, 3, and 
xv. 7. Here I should take it in the sense to receive kindly into one's 
house, as in Acts, xxviii. 2. Ta ifxd anXdy-^va, ' mine own bowels ', 
that is, as dear to me as my own bowels. So in Plautus [Casina, 
line 837], ' my little heart '. 

1 [Grotius gives eight references to the Digest ; two are correct, but the others appear to be 
mistakes. The references given above are to the passages he evidently had in niind.] 



Notes on the Epistle of Paul to Philemon 871 

13. ov iyw ifiovXofjLrjv 777)69 ifxavrbv Kariyeiv, * whom I was 
wishing to keep with me \ The indicative mood is here used in 
place of the subjunctive, in accordance with Greek usage. I should 
have wished to keep him with me, if indeed other considerations, 
which will now follow, had not opposed. In regard to this manner 
of speaking, see what I have said On Matthew, xxvi. 39. 

Iva virep crov StaKovfj /xoi, ' in order that he might minister to 
me in thy place '. That he might render to me in all things the 
service which thou wouldst be rendering if thou wert here. 

iv 7-019 8eo-/xot5 rov EvayyeXCov, * in the bonds of the Gospel '. 
In these bonds, which I bear for the sake of the Gospel. The 
manner of speaking is the same that we found above in verse 9. 

14. ^o)/oi5 Se Trjs 0-779 yvcofjLTjs ovhev r)6eXr)cra rroLrjcraL, ' but I 
wished to do nothing without thy consent '. I was unwilling to 
make use of him except with thy full approval. 

Iva jxr) o>9 Kara dvdyKrjv rb ayaOov crov, dWd Kard eKOvcrLOV, ' that 
thy goodness might not be as it were from constraint, but from free 
will '. If Paul should have kept him, the desire of Philemon would 
not have become so apparent as it would be if he should have been 
sent to Philemon, and Philemon should send him back to Paul ; Seneca, 
On Benejits, II. iv : ' If you wish to know whether I am willing, make 
it possible for me to be unwilling '. 'Ekovctlov, ' of free will ', and 
dvayKalov, ' necessary ', or, rb Kar dvdyKrjv, * that which is from 
constraint ', are used in contrast, as in 1 Peter, v. 2. So Paul the jurist 
sets over against each other performance from free will and from 
constraint, Digest, III. v. 18. 2. Praise, moreover, is not due except 
to free actions. 

15. Tct^a ydp Sia tovto, ' For perhaps on this account '. As 
if he were to say, ' Perchance that was the plan of God, when He 
permitted him to run away '. Compare Genesis, xlv. 5. 

iXvpLo-Or), ' he went away '. Here also you see what we said 
above, that a thing harsh in reality is softened in statement ; he said 
' went away ', ixopLcrdrj, instead of ' ran away '. Such expressions 
the Greeks call eixfyrjiJLLcrpoL, ' euphemisms '. 

717)69 ajpav, ' for a time '. That is, for a short time. Thesame 
type of expression is found in 2 Corintbians, vii. 8 ; Galatians, ii. 5 ; 
and 1 Thessalonians, ii. 17. 

Iva aiajvLov avrbv e X V^ ' that thou mayest have him back 
forever '. That, reformed by me, he may be permanently useful to 
thee. A.lajvLov, ' forever ', is here used as in Horace, ' will serve 
forever ' [Epistles, I. x. 41]. 

Evangelical teaching does not remove differences of status and 
the authority of masters over slaves, as is clear from 1 Timothy, vi. 1, 2 ; 
Titus, ii. 9 ; 1 Peter, ii. 10 [ii. 18] ; Ephesians, vi. 5, 6 ; Colossians, 



872 Notes on the Epistle of Paul to Philemon 

iii. 22. [616] There is therefore no reason why a Christian, who as 
a master is able to have full authority over slaves, may not as a ruler 
have full authority over subjects. Similar are the master in his house, 
the king in his kingdom. Says Seneca, On Benefits, III. xviii : ' If 
a slave is hindered from attaining merit [as a benefactor of his 
master] by necessity, and the fear of suflering to the utmost, the 
same obstacles will hinder both him who is subject to a king and him 
who is under a commander, since, although under diflerent names, 
they are similarly subject to authority.' And so Peter places on an 
equality the authority of kings and that of masters. For without 
having recourse to a magistrate masters were able to torture slaves 
who had misbehaved, and even to put them to death ; Digest, I. vi. 1 ; 
Institutes, I. viii. 1. This, moreover, was the law not only at Rome 
but also in Greece ; see Seneca, Controversies, V. xxxv [X. xxxv]. 
This in fact came from the law of nations, as we learn from the texts 
of law just cited. 

In what way masters ought to apply this law, from the time that 
they became Christians, Paul taught them ; and he would have said 
the same things to kings if at that time kings had been Christian, as 
many of the masters were. Both Nicodemus and Joseph of Arimathea 
were councillors, possessing authority and power to punish. For the 
public council of the people as well as that of the city of Jerusalem 
had the right of scourging, as is clear from Matthew, x. 17 ; Acts, v. 48 
[v. 40] ; 2 Corinthians, xi. 24. Furthermore, it had also the right of 
punishing with death, if the Romans at any time should permit this, 
as the Jews had a general permission to kill a foreigner who should 
enter the enclosure of the Temple. Nevertheless, Christ never bade 
these councillors, His disciples, to withdraw from that office. If He 
had done so, He would undoubtedly have broken a law by which 
those that had been in a lawful manner called to this office were 
ordered to discharge its duties. But such procedure was far from 
Him. While He passed the life of a mortal, He was * under the law ', 
Galatians, iv ; and He did not break the law in any particular Himself, 
nor instigate others to break it. 

16. ovk en w5 SovXov, ' not now as a slave '. Supply ' merely ', 
as is indicated by what follows. Frequently in the speech of all 
peoples, but especially in Hebrew, this particle is understood. Again, 
TTpoo-Xafiov, ' receive ', is to be repeated from what has gone before. 

dXX* virkp SovXov, ' but as more than a slave '. Belonging to 
thee not by the law of the master alone, but etc. 

a&\<f>bv dya7rrjTov, ' a beloved brother '. Assuredly to all 
Christians. 

fxdXto-Ta ifioi, ' especially to me '. To me who have made trial 
of his faithful service. 



Notes on the Epistle of Paul to Philemon 873 

noorco Se fjiaWov oroi, ' but how much more to thee \ - He ought 
to be much more dear to thee than to me, because he will be always 
in thy service, so long as thou shalt desire. 

kcll iv aapKi, 'both in the flesh '. The body of Onesimus belongs 
not so much to himself as to thee, Krrjcrei kcu xPV "* 1 * ' m respect to 
possession and use '. In Aristophanes, Cario says [Plutus, 6-J~\ : 

Mastery of the body Fortune gives not to the master, 
But to him who by a purchase makes it his. 

Sctpf, ' flesh ', and crcofxa, ' body ', are often used one for the 
other, as is clear from the Hebrew ; Zephaniah [Sophoniah], i. 17 ; 
Ezekiel, x. 12; and other passages, with comparison of the Greek 
and Latin translations. 

[617] 17. ei ovv ifjLt X a ? kolvcovov, ' if, then, thou countest 
me a partner '. If thou countest me a friend, and as such sharing 
in thy concerns. 

wpoo-Xafiov avrovy ' receive him '. Not only refrain from the 
punishment which by thine own right thou wert able to inflict, but 
also receive him kindly. ' You received into your house, unto your 
heart ', said Pliny in regard to a matter quite similar ; Letters, IX. xxiv. 

o)? e/xe, ' as myself '. For since Onesimus was a friend of Paul, 
whatever was done for him seemed to be done for Paul himself. 

18. Et Se tl 7781*770-6' o-e, ' Moreover if he hath wronged thee 
in any respect '. If he carried off something when he ran away. 

77 6<^tXet, ' or owes [thee] '. Or if according to thy accounts 
he was a defaulter. A general term is here used instead of the par- 
ticular term. 

tovto ifiol iXXoyeL, * charge this to me '. Charge that to my 
account. Make me instead of him thy surety. 

19. 'Eyw IlauXo? eypaxpa Trj e/177 x L Ph ' J Paul nave written 
with my own hand '. That thou mayest be certain, thou hast here 
my handwriting. Thou wilt be able to bring action against me at 
any time by reason of the autograph. This is what the Scholiast on 
the Digest 9 XX. iii. 4, calls ' to write a note of hand '. Add Digest 
[Code\ IV. ii, and Digest, XXXIV. iii. 3. 

iycb airoTLcrcoy ' I will repay '. This, in Latin, is said to con- 
stitute a pecuniary obligation, and there is a title on the subject in 
the Digest [XIII. v]. The formula itself is contained in the words 
iyco awoTLCTco, or satisfaciam tibi, ' I will satisfy you ', as Novels, cxv. 6, 
has it ; this is ordinarily inserted in the Code, under the title ' On 
constituting a pecuniary obligation ' [IV. xviii]. Similarly in Digest, 
XIII. v. 5. 3, this formula is found : ' I have written in accordance 
with the commission of Seius, that if anydebt to you has been 
approved I will guarantee it to you and will pay it without con- 
troversy.' And there is another formula in the same title, Digest, 



874 Notes on the Epistle of Paul to Philemon 

XIII. v. 26 : ' The ten [pieces of money] which Lucius Titius had 
received as a loan from your money-chest you have, Sir, in my posses- 
sion, with full reckoning of interest.' 

Moreover, an obligation can be created even in respect to money 
which is owed only according to the law of nature (Digest, XIII. 
v. 1. 7). Slaves can owe their masters, not indeed by municipal law, 
but by natural law (Digest, XLV. iii. 1). So also a surety is rightly 
accepted for an obligation arising by nature (Digest, XLVI. i. 8. 3). 

Iva llt) Xeyco crot otl kolI creavrov llol tt poaocfreLkeLs, c not to say 
to thee, that thou owest to me thy very self. It is a * figure ', 
cr\rjfxa, of * passing over in silence ', TrapacrLcoTrrjcrL^, or of ' keeping 
silent ', when we say that we wish to omit that which we are saying 
with the utmost emphasis. I could say, Paul remarks, that thou 
art in debt to me not only for w r hat thou hast but also for thy very 
self ; with reason, for without Paul Philemon would have been, and 
would have remained, in dense darkness and in sin, far from the hope 
of salvation. 

20. Nctt, aBeXcfye, ' Yes, brother '. Nctt is here the utterance of 
one entreating, as in Hebrew. 

iyco crov bvaLLirjv iv KvpCcp, ' Let me have joy of thee in the 
Lord '. That is, may it be permitted to me to rejoice by reason of 
thy progress in Christ. Compare Sirach [Ecclesiasticus], xxx. 2, 
6 Traihtvaiv rov vlov avrov, ovrjo-erai inl avrco, " whoso teacheth 
his son shall have joy in him '. Ignatius, To the Magnesians [ii], 
says : SiaKovov "EcotCovos, ov iyco bvaCjjLrjv, ' of the deacon Sotion, 
in whom may I have joy ' ; and To the Ephesians [ii. 2] : bvaCfirjv 
vllcov Stct Travros, ' May I have joy of you always '. 

avdrravaov /jlov tol cnr\ayyya iv KvpLcp, ' refresh my bowels in 
the Lord '. That is, for Christ's sake cause me to be at peace in 
regard to this matter. 

21. Ue7roL6co<; rrj vrraKofj crov eypaxpd croi, * Having confidence in 
thine obedience I have written unto thee '. My confidence has been 
inspired by the knowledge of that obedience of thine which thou 
renderest to the Gospel. [618] So v7raKorj, ' obedience ', is taken 
in Romans, i. 5, xv. 18, xvi. 19 and 26; 2 Corinthians, vii. 15, x. 5 
and 6 ; 1 Peter, i. 14 and 22. 

etSw? otl Ka\ vrrep o \iyco TroLrjcreLS, ' knowing that thou wilt do 
even beyond what I say '. I count it certain that thou wilt do more 
than I should dare to demand. 

22. "A/xa Se /ccu eroLiialJ. llol eviav, ' At the same time moreover 
prepare me also a lodging '. Prepare a lodging ; so evia, ' lodging ', 
is used in Acts, viii. 23 [xxviii. 23], and by Josephus and others. 

eATri^co ydp otl Sict tcov Trpocrevyoiv vllcov yapLcrSrjCTOLLaL vlllv, ' for 
I hope that through your prayers I shall be granted to you '. I hope 



Notes on the Epistle of Paul to Philemon 875 

that in answer to your prayers God will vouchsafe me to you, that is 
my coming to you. Some think that this hope of Paul was fulfilled 
and that, freed from his bonds, he went to Asia ; that he returned 
to Rome. 

23. ' AcnrdtpvTal cre 'E7ra</>/)cU, ' There salute thee Epaphras . . .' 
The full name is 'E7ra</>pdSiro9 (Epaphroditus) ; Philippians, ii. 25 ; 
iv. 18. The contracted form 'Ena^pas is found in Colossians, i. 7 ; 
iv. 12. Many contracted names of this sort, in a?, we have brought 
together at the beginning of Luke. 

6 crvvai)yid\(0T6<; p.ov, ' my fellow-prisoner '. One of those of 
whom mention is made in Acts, xxvii. 

ev XpLo-TO) 'lrjorov, ' in Christ Jesus '. That is, on account of 
Jesus Christ, as in verse 20 above. 

Mayo/co?, ' Mark '. He of whom mention is made in Acts, xii. 12 
and 25 ; xv. 37 and 39 ; Colossians, iv. 10. 

24. ArjfjLas, ' Demas '. Whose full name was Demetrius. He is 
mentioned in Colossians, iv. 14 ; 2 Timotby, iv. 10. 

Aov/cas, ' Luke '. A physician who gave to us the Gospel and 
the Acts. See Colossians, iv. 14; 2 Timothy, iv. II. 

ol o-vvepyoi jjlov, ' my fellow-workers '. See on verse 1 above. 

[25.] e H x^P t? ro ^ Kvptou t)jxo)v 'Itjctov XpLCTTOv, ' the grace of 
our Lord Jesus Christ '. The favour of Christ. 

fjLTa tov irvevfJLaTos vfJLOJV, ' with your spirit '. That is, be 
with you. The same phrase is used in Galatians, vi. 18. Elsewhere in 
place of this phrase he said : fxed' vfio>v, /ca! /xera ndvTOJv vfxo)v, 
' with you ', ' and with you all '. 

'AfjLrjv, ' Amen '. This is the word with which the Church made 
response after the reading of the Epistles. In consequence it began 
to be added to all the Epistles of Paul. See what I have said On 
Matthew, vi. 13. 



LIST OF EDITIONS AND TRANSLATIONS OF 
THE DE JURE BELLI AC PACIS i 

1. Hvgonis Grotii de ivre Belli ac Pacis libri tres. In quibus Paris 1625. 
ius naturae & Gentium : item iuris publici praecipua explicantur. 
Parisiis ; Apud Nicolavm Bvon, in via Iacobasa, sub signis 

S. Claudij, & Hominis Siluestris. M. DC. XXV. Cvm Privilegio 
Regis. 4 . [Not all the copies of this edition are alike, in 
consequence of changes made by Grotius during printing.] 

2. Hvgonis Grotii . . . explicantur. Moeno-Francofvrti, Frankfort-on- 
Typis & Sumptibus Wechelianorum, Danielis & Dauidis Aubrio- the-Main 
rum & Clementis Schleichii. Anno M. DC. XXVI. 8. l626 ' 

3. Hvgonis Grotii . . . explicantur. Editio secunda emen- Amsterdam 
datior, & multis locis auctior. Amsterdami, Apud Gvilielmvm l6 3 J - 
Blaevw. CI3 IOC XXXI. Cum privilegiis S. Caesarese Maj. & 
Christianissimi Galliarum Regis. fol. 

4. Hugonis Grotii . . . explicantur. Editio tertia emen- Amsterdam 
datior, & multis locis auctior. Amsterdami, Apud Ioannem l6 3 2 - 
Iansonium. CIO IOC XXXII. 8. 

5. Hvgonis Grotii . . . explicantur. Editio nova ab Auctore Amsterdam 
ipso recognita & correcta : de qua vide pagina sequenti. Amster- l6 3 2 - 
dami, apud Gvilielmvm Blaev. CIO IOC XXXII. Cum privi- 

legiis S. Caesareae Majestatis, & Christianissimi Galliarum Regis. 
8. 

6. Hvgonis Grotii . . . explicantur. Editio nova cum Amsterdam 
Annotatis Auctoris. Accesserunt et Annotata in Epistolam l6 4 2 - 
Pauli ad Philemonem. Amsterdami, apud Ioh. & Cornelivm 

Bhev. CIOIDCXLII. 8. 

7. Hvgonis Grotii . . . explicantur. Editio nova cum Amsterdam 
Annotatis Auctoris, Ex postrema ejus ante obitum cura multo l6 4 6 - 
nunc auctior. Accesserunt & Annotata in Epistolam Pauli ad 
Philemonem. Amsterdami, apud Iohannem Blaev. M D C 

XLVI. 8. 

8. Hugonis Grotii . . . Philemonem. Amsterdami, sumpti- Amsterdam 
bus Henrici Laurentii. M D C XLVIL fol. l6 47- 

1 Reprinted in summary form, by permission of Jacob ter Meulen, Librarian of the Peace 
Palace at The Hague, from his elaborate bibliographic list in the Bibhotheca Vissenana, 
volume v (Leyden, 1925), pages 159-99. No. 34^ was discovered by Dr. ter Meulen after the 
publication of his list. 

877 



8yS 



List of Editions and Translations 



Amsterdam 
1650. 

Amsterdam 
165 1. 

Amsterdam 
1651. 

Amsterdam 
1660. 

Amsterdam 
1663. 

Amsterdam 
1667. 

Amsterdam 
1670. 

Jena 1673. 



Amsterdam 
1680. 



The Hague 
1680. 



Jena 1680. 



Amstelaedami, apud 
Amstelaedami, apud 
Amstelodami, Apud 
Amstelaedami, Apud 
Amstelaedami, Apud 



9. Hvgonis Grotii . . . Philemonem. 
Ioannem Blaev. MDCL. 8. 

10. Hvgonis Grotii . . . Philemonem. 
Ioannem Blaev. MDCLI. 8. 

11. Hugonis Grotii . . . Philemonem. 
Ioannem Janssonium. CIO IDC LI. 8. 

12. Hvgonis Grotii . . . Philemonem. 
Ioannem Blaev. M DC LX. 8. 

13. Hvgonis Grotii . . . Philemonem. 
Ioannem Blaev. MDCLXIII. 8. 

14. Hvgonis Grotii . . . Philemonem, et Dissertatio de Mari 
libero. Amstelaedami Apud Ioannem Blaev. M D C LXVII. 8. 

15. Hvgonis Grotii . . . Mari libero. Amstelaedami, Apud 
Joannem Blaev. M DC LXX. 8. 

16. Hugonis Grotii . . . explicantur, Cum ejusdem I. 
Annotatis ex postrema ante obitum cura, II. Commentatione 
in Epistolam Pauli ad Philemon et III. Dissertatione de Mari 
Libero Publice ad Disputandum propositi, novis Animadver- 
sionibus illustrati, Indiceque Rerum ac Verborum locupletissimo 
adornati, Dirigente Johanne Georgio Simone, . . . Jenae Apud 
Johann. Theodor. Fleischern. Typis Samuelis Adolphi Mulleri. 
M.DC. LXXIII. 4 . 

17. Hugonis Grotii . . . explicantur. Editio novissima cum 
Annotatis Auctoris, ex postrema ejus ante obitum cura. Acces- 
serunt Annotata in Epistolam Pauli ad Philemonem, Dissertatio 
de Mari libero, & Libellus singularis de Aequitate, Indulgentia 
& Facilitate, quem Nicolaus Blancardus Belga Leidensis e codice 
Autoris descripsit & vulgavit. Nec non Joann. Frid. Gronovii 
V. C. notae in totum opus de Jure Belli ac Pacis. Amstelaedami, 
Apud Janssonio-Waesbergios, M DC LXXX. 8. 

18. Hugonis Grotii . . . explicantur. Editio novissima . . . 
vulgavit. Nec non Joann. Frid. Gronovii V. C. notae in totum 
opus de Jure Belli ac Pacis. Hagae Comitis, Apud Arnoldum 
Leers, M DC LXXX. 8. 

19. Hugonis Grotii . . . explicantur. Cum ejusdem I. 
Annotatis ex postrema ante obitum cura, II. Commentatione 
in Epistolam Pauli ad Philemon. III. Dissertatione de Mari 
Libero, IV. Epistola de Studiis instituendis, ad Benjaminum 
Maurerium, Legatum Regis Galliae &, V. Excerpto ex alia de 
juris studio. Publice olim ad Disputandum propositi, nunc vero 



List of Editions and Translations 879 

novis Animadversionibus & adjectionibus locorum concor- 
dantium illustrati, allegatione Scriptorum distinctiori, Indiceqve 
pariter Rerum ac Verborum locupletissimo adornati, Dirigente 
Johanne Georgio Simone, . . . Jenae, Sumtibus Johannis Theodori 
Fleischeri, Bibliopol. Rudolphstadii, Literis Christophori Flei- 
scheri, Anno MDC LXXX. 8. 

20. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam 
Auctoris, ex postrema ejus ante obitum cura. Accesserunt l68 9- 
Annotata in Epistolam Pauli ad Philemonem, Dissertatio de 

Mari Libero, & Libellus singularis de Aequitate, Indulgentia & 
Facilitate quem Nicolaus Blancardus Belga-Leidensis e codice 
Auctoris descripsit & vulgavit. Nec non Joann. Frid. Gronovii 
V. C. Notae in totum opus de Jure Belli ac Pacis. Amstelodami. 
Sumptibus Janssonio-Waesbergiorum, M DC LXXXIX. 8. 

21. Hugonis Grotii . . . explicantur. Cum Annotatis . . . Amsterdam 
vulgavit. Nec non Joann. Frid. Gronovii V. C. Notae in totum l68 9- 
opus de Jure Belli ac Pacis. Amstelodami. Sumptibus Abrahami 

a Someren, M DC LXXXIX. 8. 

22. Hugonis Grotii . . . explicantur, cum Annotatis Autoris Frankfort-on- 
ex postrema ejus ante Obitum cura : Accesserunt Excerpta the-Oder 
Annotationum Variorum Virorum Insignium in totum Opus, l691, 
edente Joh. Christoph. Becmano. . . . Francofurti ad Viadrum, 
Impensis Jeremiae Schrey/ M.DC.XCI. 4 . 

23. Hvgonis Grotii de Jure belli et pacis libri tres, cum Frankfort-on- 
annotatis Ipsius Autoris, & clarissimi Gronovii ; tum noviter the-Oder 
accuratis commentariis perpetuis Joh. Tesmari JCti Celeberrimi. J ^ 

Opus vt mvltorvm annorvm, ita Academiis, Aulis, Dicasteriis, diu 
multumque desideratum ; Theologis, Jure-Consultis, Philosophis, 
Oratoribus,omnibusque adeo solidae eruditionis studiosis perquam 
utile & necessarium ; quippe in quo textus Grotianus fideliter 
exhibetur, obscuriora perspicue illustrantur, dubia rationibus & 
auctoritatibus tam veterum quam recentium Scriptorum solide 
confirmantur, Paradoxa modeste diluuntur, omissa sedulo sup- 
plentur, aliorumque interpretationes solicite perpenduntur & 
inter se conferuntur. Ad calcem operis accessere Ulrici Obrechti, 
JCti Excellentissimi, Observationes ad eosdem Libros, cum 
Indicibus plenissimis. Francofurti ad Moenum Sumptibus Joan. 
Davidis Zunneri, Typis Joannis Baueri, M DC XCVL fol. 

24. Hugo Grotius de Jure belli ac pacis In quibus Jus Leyden 1696. 
Naturae & Gentium, item Juris publici praecipua explicantur. 

Cum annotationibus Auctoris, & Notis eruditissimis Variorum. 
Ex accuratissima recensione & cum animadversionibus viri 
1569-27 3 N 



88o 



List of Editions and Translations 



Frankfort-on- 

the-Oder 

1699. 



Amsterdam 
1701. 



desideratissimi Gothofredi Spinaei, In Academia Lugd. Batava, 
(dum viveret) Professoris ordinarii. Editio plane nova. Lugduni 
Batavorum, Ex Officina Johannis du Vivie, Bibliopolae 1696. 4 . 

Utrechti696- 25. Hugonis Grotii . . . explicantur, Cum commentariis 

i73* Gulielmi vander Muelen . . . Accedunt Et Authoris Annotata, 

ex postrema ejus ante obitum cura nec non Joann. Frid. Gronovii 
V. C. Notae in totum opus. Ultra Jecti, Prostant apud Guliel- 
mum vande Water [Gulielmum Broedelet], Bibliopol. CIO 
IOC XCVI [MDCC] [MCDCIII]. 3 v. fol. 

26. Hugonis Grotii . . . explicantur, Cum Annotatis Autoris 
ex postrema ejus ante obitum cura : Accesserunt Excerpta 
Annotationum variorum Virorum Insignium in totum Opus, 
edente Joh. Christoph. Becmano. Editio secunda correctior . . . 
Francofurti ad Viadrum, Impensis Jeremiae Schrey / & Joh. 
Christoph. Hartmann / M.DC.IC. 4 . 

27. Hugonis Grotii . . . cura. Accesserunt Annotata in 
Epistolam Pauli ad Philemonem, Dissertatio de Mari Libero, 
& Libellus singularis de Aequitate, Indulgentia, & Facilitate, 
quem Nicolaus Blancardus Belga-Leidensis e codice Auctoris 
descripsit & vulgavit. Nec non Joann. Frid. Gronovii V. C. 
Notae in totum opus de Jure Belli ac Pacis. Editio novissima, . . . 
Amstelodami, Apud Janssonio-Waesbergios. MDCCI. 8. 

Amsterdam 28. Hugonis Grotii . . . ostendit. Amstelodami, Apud 

1701. Viduam Abrahami a Someren. MDCCI. 8. 

Amsterdam 29. Hugonis Grotii . . . ostendit. Amstelaedami, Apud 

1702. Henricum Wetstenium, ut & Rodolfum & Gerhardum Wet- 
stenios, H. FF. CIO 10 CC II. 8. 

Amsterdam 30. Hugonis Grotii . . . explicantur. Cum Commentariis 

i74- Gulielmi vander Muelen, Domini d'Oudt-Brouckhuysen, Decani 

D. Mariae, Aggerum, qui inferiorem Leccae partem coercent, 
Praefecti ; &c Accedunt Et Auctoris Annotata, ex postrema ejus 
ante obitum cura ; & Joan. Fred. Gronovii Notae in totum opus. 
Amstelaedami, Apud Janssonio-Waesbergios & Wetstenios. CIO 
10 CCIV. ... 3 v. fol. 

Amsterdam 31. Hugonis Grotii . . . explicantur. Cum Annotatis 

l 7 12 - Auctoris, ex postrema ejus ante obitum cura. Accesserunt 

ejusdem Dissertatio de Mari libero, & Libellus singularis de 
aequitate, indulgentia, & facilitate, Nec non Joann. Frid. Gronovii 
V. C. Notae in totum opus de Jure Belli ac Pacis. Editio novis- 
sima, . . . Amstelaedami, Ex Officina Wetsteniana. CIO 10 
CCXII ... 8. 



List of Editions and Translations 88 1 

32. Hugonis Grotii . . . ostendit. Amstelaedami, Apud Amsterdam 
Janssonio-Waesbergios. CIO 10 CCXII. ... 8. 17. 

33. Hugonis Grotii . . . cura. Accesserunt Excerpta Anno- Frankfort-on- 
tationum variorum virorum insignium in totum opus edente the-Oder 
Joh. Christoph. Becmano. Editio Secvnda Correctior. . . . x ? 
Francofurti ad Viadrum Apvd Jeremiam Schrey. MDCCXVIII. 

4- 

34. Hugonis Grotii . . . cura. Accesserunt ejusdem Dis- Place un- 
sertatio de mari libero, & Libellus singularis de aequitate, indul- known l 7 l 9- 
gentia, & facilitate, Nec non Joann. Frid. Gronovii V. C. Notae 

in totum opus de Jure Belli ac Pacis. Editio novissima [n.p.]. 
Anno CIO 10 CCXIX 2 v. 4 . 

34a. Hugonis Grotii . . . cura. Accesserunt ejusdem Place ? 
dissertatio de mari libero, et libellus singularis de aequitate, l 7 l 9- 2 Z- 
indulgentia, et felicitate, nec non Joann. Frid. Gronovii V. C. 
notae in totum opus de jure belli ac pacis. Editio novissima. 
Augustae 17 19-1723. 2 v. 4 . 

35. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam 
Auctoris, ejusdemque Dissertatione de Mari libero, ac Libello l 7 20 - 
singulari de Aequitate, Indulgentia, & Facilitate : Nec non 

Joann. Frid. Gronovii V. C. Notis in totum opus de Jure Belli 
ac Pacis. Editionem omnium, quae hactenus prodierunt, emen- 
datissimam, ad fidem priorum & optimarum recensuit ; . . . 
Notulas denique addidit Joannes Barbeyrac, . . . Amstelaedami, 
Ex Officina Wetsteniana CIO 10 CCXX 8. 

36. Hugonis Grotii . . . addidit Joannes Barbeyrac, JC. & Amsterdam 
Publici Privatique Juris Antecessor Groninganus. Amstelaedami, l 7 2 - 
Apud Janssonio-Waesbergios. CIO 10 CCXX. ... 8. 

37. Hugonis Grotii . . . cura, et Praefatione Christiani Marburg 
Wolfii. Marburgi Cattorum, Apud Phil. Casimir. Mullerum. J 734- 
MDCC XXXIV. 8. 

38. Hugonis Grotii . . . explicantur. Cum Annotatis Amsterdam 
Auctoris, ejusdemque Dissertatione de Mari libero ; Ac Libello ^S- 
singulari de Aequitate, Indulgentia, & Facilitate ; Nec non 

Joann. Frid. Gronovii V. C. Notis in totum opus de Jure Belli 
ac Pacis. Ex altera recensione Joannis Barbeyracii, . . . Cum 
Notulis ejusdem nunc auctioribus, pluriumque locorum, ex 
Auctoribus quibusvis laudatorum, adcuratiori indicatione. Am- 
stelaedami, Apud Janssonio-Waesbergios. CIO 10 CCXXXV. 
2 v. 8. 

3 n 2 



882 



List of Editions and Translations 



Amsterdam 39. Hugonis Grotii . . . indicatione. . . . Amstelaedami, 

1735. Sumptibus Gasparis Fritsch. CIO 13 CCXXXV. 2 v. 8. 

Breslau 1744, 4- Henrici de Cocceji Sacrae Regiae Majestati Borussicae 

1746, 1747, quondam a consiliis secretioribus Grotius illustratus seu Com- 
J 75 2 - mentarii ad Hugonis Grotii de Jure belli et pacis libros tres in 

quibus Jus Naturae & Gentium, item Juris Publici praecipua 
explicantur. Adduntur Annotata Authoris ex postrema ejus 
ante obitum cura. In commentario id praecipue agitur, ut 
Grotius ex ipso Grotio illustretur, defectus circa principia 
Grotiana notentur ; et vera juris naturae principia, inprimis 
quatenus ad interpretationem juris romani pertinent, pro- 
ponantur. Accedunt Observationes S. d. C. H. F. . . . Wratislaviae 
sumtibus Johannis Jacobi Korn. Bibliopol. Anno 1744, (1746), 
(1747), (1752). 4 v. fol. [The title-page of the fourth volume 
enumerates other writings of Grotius.] 

Lausanne 41. Hugonis Grotii de Jure belli ac pacis libri tres, Cum 

W* 2 - Annotatis Auctoris, nec non J. F. Gronovii Notis, & J. Barbey- 

racii Animadversionibus ; commentariis insuper locupletissimis 
Henr. L. B. de Cocceii . . . insertis quoque observationibus 
Samuelis L. B. de Cocceii Henrici filii . . . Adduntur tandem 
ipsius Grotii Dissertatio de Mari libero, ac Libellus singularis de 
Aequitate, Indulgentia et Facilitate. Lausannae, Sumptibus 
Marci-Michaelis Bousquet, & Sociorum. MDCCLI, [MDCCLI] 
[MDCCLII] [MDCLII]. 5 v. 4. 

42. Hugonis Grotii . . . Facilitate. Cum quibusdam notis 
criticis. Lausannae. Sumptibus Marci-Michaelis Bousquet, & 
Sociorum. MDCCLVIII. [MDCCLVIII] [MDCCLIX] 
[MDCCLIX] [MDCCLIX]. 5 v. 4 . 

43. Hugonis Grotii . . . explicantur. Cum Annotatis 
Auctoris eiusdemque Dissertatione de Mari libero ; Ac Libello 
singulari de Aequitate, Indulgentia, et Facilitate ; Nec non 
Jo. Fr. Gronovii v. c. Notis in totum opus de Jure belli ac pacis. 
Ex altera recensione Joannis Barbeyracii. . . . Cum Notulis 
ejusdem nunc Auctioribus, pluriumq. locor. ex Auctorib. quib. 
laudat. adcuratiori indicatione. . . . Lipsiae Impensis Ioannis 
Pauli Krausii bibliop. Vienn. MDCCLVIII. 2 v. 8. 

Utrechti773. 44. Hvgonis Grotii de Ivre belli ac pacis libri tres, cum 

adnotationibus selectis Joann. Frid. Gronovii, & auctioribus 
Ioannis Barbeyracii. Accedit H. Grotii Dissertatio de Mari 
libero ; Et Libellus singularis de Aeqvitate, Indvlgentia, & 
Facilitate. Edidit atque praefatus est Meinardvs Tydeman. 



Lausanne 
1758, 1759- 



Leipzig 1758. 



List of Editions and Translations 883 

Traiecti ad Rhenvm. Ex officina Ioannis a Schoonhoven & Soc. 
CIO 10 CC LXXIII. 2 v. 8. 

45. Hugonis Grotii de jure belli et pacis libri tres accom- Cambridge 
panied by an abridged translation by William Whewell . . . l8 53- 
Edited for the Syndics of the University Press. Cambridge : 

M. DCCC. LIII. John W. Parker, London. 3 v. 8. 

46. Hugonis Grotii . . . Philemonem. Volume one. Re- Washington 
production of the Edition of 1646, Carnegie Institution of ^W- 
Washington, 191 3. 4 . [For Volume Two see No. j6, post.~\ 

47. Hugonis Grotii . . . explicantur. Cum annotatis auctoris Leydcn 1919. 
edidit P. C. Molhuysen. Prsefatus est C. van Vollenhoven. 
Lugduni Batavorum Apud A. W. Sijthoff. MCMXIX. 4 . 



Translations 
Dutch 

48. Drie boecken Van Hvgo de Groot, Nopende het Recht Haarlem 
des Oorloghs Ende des Vredes. In dewelcke het Recht der l6 35- 
Natuere, der Volckeren, mitsgaders de principaelste stucken van 

't Burgelijcke Recht verklaert werden. Eerst in 't Latijn uyt- 
gegeven, Ende nu ten dienste van alle Bedienaers vande Bancken 
der Justitie / ende andere weet-suchtige Lief-hebbers onses 
Vaderlands / In 't Neder-duyts vertaelt Door H. V. Ghedruckt 
te Haerlem, by Adriaen Roman / Boeckdrucker, woonende inde 
Groote Houtstraet, inde Vergulde Parsze. Anno 1635. 4 . 

49. Drie Boecken Van 't Recht des Oorloghs en Vredes. . . . Amsterdam 
overgheset Door B. D. Seer . . . t' Amsterdam, Gedruckt by 165 1. 
Iacob Colom, Boeckverkooper op het Water, in de vyerighe 
Colom, Anno 1651. 4 . 

50. Drie Boecken Van 't Recht des Oorloghs en Vredes . . . Amsterdam 
overgheset Door B. D. Den tweeden Druck. Seer . . . t' l6 57- 
Amsterdam, By Ian Hendricksz En Willem van Beaumont, 
Boeck-verkoopers. 1657. 4 . 

51. Hugo de Groot Van 't Regt des Oorlogs en Vredes, . . . Amsterdam 
met de beste verklaringen en tegenwerpingen van de Hr. Joh. 1705. 
Frid. Gronovius, en anderen : nooit op die wijze in onze spraake 

aan 't ligt gebragt. Door Jan van Gaveren. Met een zeer 
wijdloopig register. t' Amsterdam, By Fran^ois van-der Plaats, 
Boekverkoper in de Gaper-steeg, by de Beurs. 1705. 4 . 



884 



List of Editions and Translations 



Amsterdam 52. Hugo de Groot van 't Regt des Oorlogs en Vredes, . . . 

l 71 2 - Tweeden druk. t' Amsteldam, By Salomon Schouten, Boekver- 

kooper in de St. Luciesteeg. 1732. 4 . 

French 

Parisi687. 53. Le Droit de la guerre et de la paix, par M. Grotivs : 
divise en trois livres, Ou il explique le Droit de Nature, le Droit 
des Gens, & les principaux Points du Droit public, ou qui 
concerne le gouvernement public d'un Etat. Traduit du Latin 
en Francois, par Monsieur de Courtin. . . . A Paris, Chez Arnould 
Seneuze, . . . M. DC. LXXXVII 2 v. 4 . 

Amsterdam 54. Le Droit de la guerre et de la paix, . . . Traduit du 

The Hague Latin en Francois, par Monsieur De Courtin. . . . A Amsterdam, 

Chez Abraham Wolfgang ; et a la Haye, Chez Adrian Moetjens. 

M. DC. LXXXVIII. 3 v. 12 . 

TheHague 55. Le Droit de la guerre et de la paix, . . . Traduit du 

! 73- Latin en Francois, par Monsieur De Courtin. Augmente dans 

cette Edition de la Dissertation de la Liberte de la mer, &c. 
A La Haye, Chez Adrian Moetjens. M. DCCIII. 3 v. 12 . 
Amsterdam 56. Le Droit de la guerre et de la paix. Par Hugues 

J 7 2 4- Grotius. Nouvelle traduction, par Jean Barbeyrac, . . . Avec 

les Notes de 1'Auteur meme, qui n'avoient point encore paru en 
Francois ; & de nouvelles Notes du Traducteur. A Amsterdam, 
Chez Pierre de Coup. MDCCXXIV. 2 v. 4 . 
Amsterdam 57. Le Droit de la guerre et de la paix ; par Hugues 

*7 2 9- Grotius. Nouvelle traduction ; Par Jean Barbeyrac, . . . A Am- 

sterdam, Chez Pierre de Coup. M. DCCXXIX. 2 v. 4 . 

Baseli746. 58. Le Droit de la guerre et de la paix. . . . A Basle, Chez 

Emanuel Thourneisen, MDCCXLVI. 2 v. 4 . 

Leyden 1759. 59. Le Droit de la guerre et de la paix par Hugues Grotius. 

. . . A Leide, Aux Depens de la Compagnie. MDCCLIX 2 v. 4 . 

Basel 1768. 60. Le Droit de la guerre et de la paix par Hugues Grotius. 

Nouvelle traduction, Par Jean Barbeyrac, . . . A Basle, Chez 
Emanuel Tourneisen, MDCCLXVIII. 2 v. 4 . 

Leyden-Lyons 61. Le Droit de la guerre et de la paix, . . . A Leyde, chez 

^ 68 - J. de Wetstein : Et se trouve, A Lyon, Chez Jean-Marie Bruyset, 

Imprimeur-Libraire. MDCCLXVIII. 2 v. 4 . 
Paris 1865-7. 62. Le Droit de la guerre et de la paix . . . Nouvelle tra- 

duction Precedee d'un Essai biographique et historique sur 
Grotius et son temps accompagnee d'un choix de notes de 
Gronovius, Barbeyrac, etc. completee par des notes nouvelles. 



List of Editions and Translations 885 

Mise au courant des progres du Droit public moderne et suivie 
d'une table analytique des matieres par M. P. Pradier-Fodere, 
. . . Paris Guillaumin et C ie 1865 (1867) (1867). 3 v. 8. 12. 

German 

63. Hugonis Grotii Drey Biicher vom Rechte des Krieges Leipzig 1707. 
und des Friedens / darinnen das Recht der Natur undder Volcker / 

wie auch die vornehmsten Sachen desjenigen Rechtes / welches 
von der Regierung eines Staates handelt / erklaret / und die 
Anmerckungen des Verfassers hinzugefiiget werden. Aus dem 
Lateinischen ins Deutsche iibersetzet durch P. B. S. g. Schutz / 
.... Leipzig / verlegts Friedrich Groschuff / im Jahr Christi / 
1707. 4 . 

64. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on- 
Rechten . . . Ins Teutsche iibersetzet und herausgegeben von the-Main 

J. N. S Franckfurt am Mayn / Zu finden bey Notar. Fischern / ^ ^ 

neben dem Schonburger Hof. Und daselbst gedruckt bey 
Johann Bauern / MDCCIX. fol. 

65. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on- 
Rechten, . . . Ins Teutsche iibersetzet und herausgegeben von the-Main 

J. N. S. . . . Franckfurt am Mayn, Zu finden bey Wolffgang *7 21, 
Christoph Multzen. Den Laden gegen dem neuen Caffee- 
Hausiiber. MDCCXXI. fol. 

66. Hugonis Grotii Drey Biicher von Kriegs- und Friedens- Frankfort-on 
Rechten, . . . Ins Teutsche iibersetzet und herausgegeben von the-Main 

J. N. S. . . . Franckfurt am Mayn, Zu finden bey Wolffgang ^ 28 - 
Christoph Multzen MDCCXXVIII. fol. 

6j. Des Hugo Grotius drei Biicher iiber das Recht des Berlin 1869. 
Krieges und Friedens, . . . Aus dem Lateinischen des Urtextes 
iibersetzt . . . von J. H. v. Kirchmann. Berlin, 1869. Verlag 
von L. Heimann. 2 v. 8. 

English 

68. The illustrious Hvgo Grotius of the Law of Warre and London 1654. 
Peace with annotations. III parts. And Memorials of the 
Author's Life and Death. . . . London, Printed by T. Warren, 

for William Lee, And are to be sold at his shop, at the signe of 
the Turks-head in Fleet-street, M. DC. LIV. 8. 

69. idem, M.DCLV. 8. London 1655. 

70. The most excellent Hugo Grotius his three Books London 1682. 
Treating of the Rights of War & Peace. . . . Translated into 



886 



List of Editions and Translations 



London 1738. 



Pontefract 
1814. 



English by William Evats, B.D. London, Printed by M. W. 
for Thomas Basset at the George in Fleetstreet, and Ralph 
Smith at the Bible under the Piazza of the Royal Exchange in 
Cornhill. MDCLXXXII. fol. 

Londoni7i5. 71. H. Grotius of the Rights of War and Peace, In three 

volumes. . . . Done into English by several Hands ; . . . London : 
Printed for D. Brown in Exeter Exchange in the Strand ; T. 
Ward in the Inner-Temple Lane ; and W. Meares at the Lamb 
without Temple Bar. MDCCXV. 3 v. 8. 

72. The Rights of War and Peace, in three books. . . . 
London : Printed for W. Innys and R. Manby, J. and P. Knap- 
ton, D. Brown, T. Osborn, and E. Wicksteed. MDCCXXXVIII. 
fol. 

73. The Rights of War and Peace, including the Law of 
nature and of nations, translated . . . by the Rev. A. C. Camp- 
bell. Pontefract : Printed by B. Boothroyd, and sold by F. and 
C. Rivington; Gale, Curtis, and Co., Paternoster Row; Cadell 
and Davies, Strand ; and Stockdale, Piccadilly, London. 18 14. 
3 v. 8. 

74. Grotius on the rights of war and peace : an abridged 
translation. By William Whewell . . . Edited for the Syndics of 
the University Press. Cambridge : MDCCCLIII. John W. 
Parker, London. 3 v. 8. 

75. The rights of war and peace . . . translated . . . by 
A. C. Campbell, A.M. With an introduction by David J. Hill, 
. . . M. Walter Dunne, Publisher Washington & London. [190 1 .] 
8. [An abridged reprint of No. 73.] 

76. De Jure Belli ac Pacis Libri tres by Hugo Grotius. 
Volume Two : The translation by Francis W. Kelsey with the 
collaboration of Arthur E. S. Boak, Henry A. Sanders, Jesse S. 
Reeves and Herbert F. Wright and an introduction by James 
Brown Scott. Oxford : at the Clarendon Press, 1925. 4 . 
[Publication of the Carnegie Endowment for International 
Peace, Division of International Law. For Volume One see 
No. 46, supra.~\ 

Spanisb 

Madrid 1925. Jj. Del Derecho de la Guerra y de la Paz de Hugo Grocio. 

Version directa del original Latino por Jaime Torrubiano Ripoll 
. . . Editorial Reus (S.A.). Madrid, 1925. 4 v. 16 . 



Cambridge 
1853. 



Washington, 
London 1901, 



Oxford 1925. 



INDEXES 



NOTE 

An attempt has been made to give the full name, date of birth and death or 
Jloruit, nationality, and field of labour of each author and the title of each work 
referred to by Grotius. The translated title is given first where the English 
translation helps to disclose the subject-matter of the work, in which case it is 
followed by the original title in parentheses. If the original title is in some other 
language than Latin, it is omitted or the Latin title under which it is commonly 
cited is substituted. The Loeb Classical Library and the Oxford Classical Texts 
have been used to verify the references where available. Otherwise a place and 
date is added inside the parentheses to indicate the edition used to verify Grotius's 
citations. Where the former were not available and no other edition has been 
specified, the reference has not been verified in the original. References to the 
authors and works contained in the Corpus Iuris Civilis or the Corpus Iuris 
Canonici are listed only under the particular part of the Corpus unless mentioned 
specifically by Grotius under their own name. Grotius almost invariably cites 
examples in support of his statements ; references to these will be found under 
the subject which they exemplify. In the verification of the references and in 
the preparation of the indexes, invaluable assistance has been rendered by Mr. 
Walter H. Zeydel of the Division of International Law of the Carnegie Endow- 
ment. H. F. W. 



\ 



INDEX OF AUTHORS CITED 



Abarbanel, see Abrabanel. 
Abbas Panormitanus, see Panormitanus. 
Aben-Ezra, or Ibn'Ezra, Abraham-ben- 
Meir (1119-c. 1194), Spanish Jewish 
exegete, 613. 
On Genesis, 371. 
On Job, 488. 
Abrabanel, Isaac (1437-1508), Spanish 
rabbi, 516. 
On Deuteronomy, 62. 
Abulensis (i.e. of Avila), see Tostado, 

Alonso. 
Accolti, Francesco (141 8-c. 1485), Italian 
canonist, of Arezzo, hence sometimes 
cited as Aretinus. 
Consilia, 99. 
On Sext, 6iy. 
Accursius (c. 1 182-1260), Italian glossator. 

On Digest, 323. 
Achilles Tatius (3d or 4th century), Greek 
romance-writer. 
On Aratus (Isagoge ad Arati Phaenomena), 
311 (bis), 312. 
Acominatus, see Nicetas Acominatus. 
Acosta, Jose de (c. 1539-1600), Spanish 
Jesuit. 
On Securing the Salvation of the Indians 
(De Procuranda Indorum Salute), 506. 
Acron, Helenius (2d century), Roman 
grammarian. 
On Horace^s Satires, 15. 
Acts of the Apostles, see Bible. 
Adam of Bremen (nth century), historian. 
Ecclesiastical History (Gesta Hamburgen- 
sis Ecclesiae Pontificum, vel Historia 
Ecclesiastica), 279, 696, 842. 
Ado, St. (c. 800-875), Archbishop of Vienne, 
85. 
Chronicon, 119. 
Adrian VI (1459-1523), Pope, Dutch theo- 
logian. 
Quaestiones Quodlibeticae XII, 195, 592. 
Aegidius Regius, see Regius, Aegidius. 
Aelian, Claudius (fl. 200), Greek historian, 
248. 
Various History (Varia Historia, Leipzig, 
1887), 38, 144, 169, 233, 449, 450 (bis), 

45 6 , 5i3, 5H> 530, 54 1 * 577, 581, 620, 
621,657,751,772,796. 



History ofAnimals (De Natura Animalium, 
Leipzig, 1884), 751. 
Aelianus Tacticus (fl. 100), Greek writer on 
war. 
Tactica, 634. 
Aelius Gallus, see Gallus, Aelius. 
Aemilius, Paulus, see Emilio, Paolo. 
Aeneas Sylvius, see Sylvius, Aeneas. 
Aeschines (389-314 b.c), Athenian orator. 
Concerning the Badly Conducted Embassy, 

528, 653, 665, 667. 
Against Ctesiphon, 458, 562. 
Aeschylus (525-456 b.c), Greek tragic poet, 
458. 
Agamemnon, 371. 
Choephorae, 231. 
Furies, 250. 
Persians, 126, 775. 
Prometheus Bound, 126, 139, 613. 
Suppliants, 107, 108, 246 (bis), 371, 534. 
Afflictis, Matthaeus de (1448-15 28), Italian 
lawyer. 
Decisiones Sacri Regii Consilii Neapolitani, 

252, 389. 
De Natura Succedendi, 294. 
On the Feuds (Commentarius super tres 
libros Feudorum), 213. 
Agapetus (6th century), deacon of St. 
Sophia at Constantinople. 
Parainetica, 524. 
Agatharchides (2d century b.c), Greek 

grammarian, 123. 
Agathias (c. 530-c. 582), Greek historian. 
Histories (edit. Dindorf, in Historici 
Graeci Minores, Leipzig, 1871, vol. ii), 
19 (bis), 26, 81, 131, 135, 173, 215, 
286, 387, 402, 454*, 462, 483, 487, 519, 
521, 546, 548, 556, 564, 654, 665, 698, 
722, 728, 734, 743, 752, 773, 787, 816, 
855, 857. 
Aggenus Urbicus (ist or 2d century), Latin 
grammaticus. 
Commentary on Frontinus (In Julium 
Frontinum Commentarius), 217, 300. 
Aguirre, Miguel d' (d. 1588), Spanish juris- 
consult. 
Apologia pro Successione Regni Portugalliae 
pro Philippo Secundo Hisp. Rege, 294, 
388. 



890 



Index of Authors Cited 



Aimoin (d. 1008) of Fleury-sur-Loire, 
French monk and historian. 
History ofthe Franks (Historia Francorum), 
114 (bis), 118, 292, 386, 438, 449, 531, 
675, 822. 
Aimone, see Cravetta, Aimone. 
Alberico de Rosate, see Rosate, Alberico de. 
Albert of Strassburg (fl. 1349). 

Chronicon, 815. 
Albertus Argentinensis, see Albert of Strass- 

burg. 
Alciati, Andrea (1492-1550), Italian lawyer. 
Consilia, 429, 847. 

On Decretals (Commentaria in Aliquot 
Juris Canonici Rubricas et Capitula), 
426. 
Paradoxa, 565. 
Praetermissa, 325. 
Responsa f 413, 812. 
Aiemanni, Niccolo (1583-1626), Italian 
antiquarian. 
Procopii Historia Arcana, 224. 
Alexander (Alessandro Tartagni, c. 1424- 
1477), of Imola, hence called Imolensis, 
Italian jurist. 
Consilia, 340, 819. 
On Decretals (Comm. in Lib. III Decre- 

talium), 373. 
On Digest, 670. 
Alfenus Varus (ist century), Roman jurist. 
Digesta, 311 (ter), 312. 
Digesta a Paulo Epitomata, 537. 
Ambrose, St. (c. 340-397), Bishop of Milan 
and Father of the Church, 86, 89, 237, 
589. 
On Abraham (De Abraham), 237, 238, 

612, 685, 781. 
Against Auxentius (Sermo contra Auxen- 

tium de Basilicis Tradendis), 145. 
On Cain and Abel (De Cain et Abel), 

554- 

On the Death 0} Theodosius (De Obitu 
Theodosii Oratio), 387. 

Defence of David (Apologia Prophetae 
David), 127, 466. 

()n Duties (De Officiis Ministrorum), 13, 
83, 86, 93 (bis), 142, 162, 177, 202, 203, 
204, 276, 277, 347, 353, 357, 367 (bis), 
368 (bis), 401, 456, 473, 481, 499, 569, 
581, 582, 583, 602, 654, 792, 799, 841 
(bis). 

Hexaemeron, 199, 211. 

Letters (Epistolae), 145 (bis), 247, 250, 
370, 473 (bis), 570,618. 



On Luke (Expositio Evangelii secundum 
Lucam), 93, 96, 785. 

On Naboth (De Nabuthe Jezraelita), 211. 

On Psalms (Expositio in Psalmos), 466, 
481, 483. 

On Romans (Commentaria in Epistolam ad 
Romanos), 400, 557. 

On Tobias (De Tobia), 454. 

On Virginity (De Virginitate), 588. 

On Virgins (De Virginibus), 460. 
Ammianus Marcellinus (d. c. 395), Roman 
historian. 

History (Res Gestae), 114, 117, 118, 184, 
214, 291, 313, 317, 344, 419, 420, 432, 
454, 463, 469, 518 (bis), 521, 523, 540, 
543, 547, 555, 559, 582, 588, 606, 627, 
637, 643, 648, 654, 655, 656, 678, 703 
(bis), 722, 724, 730, 732, 785 (bis), 814, 
858 (bis). 
Amos, see Bible. 

Anaxandrides (fl. 376 b.c), Greek comic 
poet. 

Fragments, 402. See Athenaeus. 
Ancharano, Petrus de (c. 13 30-1 41 6), 
Italian canonist. 

On Sext (Lectura super Sexto), 627. 
Andocides (439-c 390 b.c), Attic orator. 

Orations (Orationes, Leipzig, 1880), 242, 

394, 522- 
Andrea, Giovanni d' (d. 1348), Italian 

civilist, 217. 
Andreae, Joannes, see Andrea, Giovanni d'. 
Andronicus (fl. 80 b.c), of Rhodes, hence 

called Rhodius, peripatetic philosopher. 
On AristotWs Nicomachean Ethics, 43, 

131, 361 (bis), 458, 497, 548, 557, 568, 

572, 610, 832. _ 
Angelus de Clavasio (Angelo Carletti, d. 

1493), Italian theologian. 
Summa Casuum sive Summa Angelica, 225, 

359, 556. 
Angelus de Ubaldis (1 328-1407), Italian 
jurist. 
Consilia, 201. 
On Code, 712. 
On Decretals, 213. 
On Digest, 383, 426, 834. 
On Institutes, 670. 
Anna Comnena (1083-1148), daughter of 
Alexis I, Emperor of Constantinople. 
Alexiad, 119, 166, 218, 262, 659 (bis), 
738, 780. 
Anthology, 313. 
Anthology, Greek, 460. 



Index of Authors Cited 



891 



Antigonus Carystius (fl. 240 b.c), Greek 


Of Sicily, 404. 


writer. 


Spanish Wars, 615, 648, 750, 794, 800. 


Collection of Marvelous Stories (Historia- 


Syrian Wars, 216, 243, 669, 730, 830. 


rum Mirabilium Collectanea), 241. 


Apuleius, Lucius (b. c. 130), Roman writer. 


Antiphanes of Rhodes (b. 408 b.c), Greek 


Apologia, 297. 


comic poet, 498, 585, 665. 


On Plato (De Platone et Eius Dogmate), 


Antiphon (480-411 b.c), Attic orator. 


330, 47- 


Orations, 530, 560. 


Aquila Romanus (3d century), Latin rhe- 


Antisthenes (b. c. 440 b.c), Greek philo- 


torician. 


sopher, 511 (bis), 585, 665. 


De Figuris Sententiarum, 378. 


Antoninus, Emperor, see Aurelius Anto- 


Archidiaconus, see Baysio, Guido de. 


ninus. 


Archiepiscopus Florentinus, see Antoninus, 


Antoninus Liberalis (fl. 150), Greek mytho- 


St. 


logical writer. 


Arethas (fl. 914), Archbishop of Caesarea. 


Collection oj ' Metamorphoses, 363. 


On Revelation (Synopsis Scholastica in 


Antoninus, St. (1 389-1459), Archbishop of 


Apocalypsim), 187. 


Florence, hence called Archiepiscopus 


Aretinus, Franciscus, see Accolti, Francesco. 


Florentinus. 


Argentre, Bertrand d' (15 19-1590), French 


Summa theologica, 333, 397, 506. 


jurist. 


Apocalypse, see Bible. 


Histoire de Bretagne, 285. 


Apocrypha, see Bible. 


Arias de Valderas, Franciscus (fl. 1533), 


Apollodorus (b. c. 140 b.c), Greek gram- 


Spanish jurist. 


marian. 


De Bello et Eius lustitia (in Tractatus 


Library, 58, 117 (bis), 175, 178, 197, 207 


Illustrium . . . Iurisconsultorum, vol. xvi, 


(bis), 249, 259, 273, 283 (bis), 498, 532, 


Venice, 1584), 22, 401, 686. 


580. 


Aristides, Aelius (b. c. 117), Greek sophist 


Apollonius Rhodius (fl. 196 b.c), Greek 


and rhetorician, 213, 569. 


epic poet. 


On the Alliance, 556. 


Argonautic Expedition (Argonautica), 249, 


On Concord, 559, 632. 


560, 622. 


For the Four, see Platonic. 


Apollonius of Tyana (ist century), Pytha- 


On Leuctra, 185, 404, 474, 494, 499, 531, 


gorean philosopher, see Philostratus. 


722, 728, 730, 792, 820. 


Apostolic Canons, see Canons, Apostolic. 


Panathenaic, 215, 450, 451, 505, 531. 


Appian of Alexandria (2d century), Greek 


On Peace, 474, 572, 575, 723, 738, 741. 


historian, 396, 691, 698. 


Platonic, 473, 562, 574. 


Civil Wars, 19 (bis), 100, 118, 122, 136, 


In Praise of Rome, 774. 


162, 170, 174, 249, 356, 364, 373, 449, 


Sicilian, 573. 


454> 54 6 > 6 59> 6 7> 6 7 2 (bis), 6 7^ (bis), 


Aristophanes (b. c. 444 b.c), Greek comic 


686 (bis), 752, 760, 792, 812, 826, 835, 


poet. 


858. 


Acharnians, 380. 


Gallic History, 449, 527 (bis), 858. 


Birds, 198, 200, 247, 370. 


Hannibalic Wars, 649. 


Clouds, 380. 


Illyrian Wars, 216, 445, 632, 850. 


Frogs, 161, 602. 


Concerning Italy, 68 1 . 


Knights, 602. 


Macedonian Affairs, 395, 446, 533, 819. 


Aristotle (384-322 b.c), Greek philosopher, 


Mithridatic Wars, 118 (bis), 131, 213, 


17, 270, 352. 


280, 428, 456, 527, 546, 590, 630, 657, 


(Unless otherwise noted, references have 


659 (bis), 669 (bis), 680 (bis), 709, 


been verified in Opera Omnia, ed. 


733,758 77*> 775. 


Didot, Paris, 1 848-1 857.) 


Numidian Affairs, 688. 


Analytics (Analytica Posteriora), 172. 


Preface, 104, 213, 774. 


De Caelo, 512. 


Punic Wars, 418, 447, 455, 655, 682, 733, 


Economics, 353, 626, 628, 750, 766. 


740,754,779,811,825,852. 


Eudemian Ethics, 43. 


Samnite History, 215, 406 (bis), 854. 


On Generation and Decay, 191. 



892 



Index of Authors Cited 



Aristotle (continued) 

History 0/ Animals, 241. 

On Interpretation, 608. 

Magna Moralia, 425, 499, 557. 

Metaphysics, 835. 

De Mirabilibus Auscultationibus, 241. 

Ov the Movement of Animals, 572. 

Nicomacbean Ethics, 14, 35, 36 (bis), 37 
(bis), 38, 40, 42, 102, 140, 165, 231 
(bis), 234, 252, 253, 271, 275, 276, 334, 
345, 35i, 358, 401, 431, 449 (bis), 458, 
469, 495, 498 (bis), 508, 547 (bis), 557 
(bis), 558, 565, 566, 570, 591, 610 (bis), 
620, 725, 728, 770, 793, 814, 832 (bis) ; 
see also Andronicus of Rhodes and 
Michael of Ephesus. 

On the Parts of Animals, 53. 

Politics (ed. Jowett, Oxford, 1885), 17, 
29, 44, 101, 102 (bis), 103 (bis), 105, 
107, 108, 112, 113, 125, 126, 133, 231, 
250 (bis), 253, 265, 311, 312, 313, 314- 

15, 315, 345, 353, 359, 380, 394, 4 6 5, 
467, 506, 509, 510, 535, 551, 552, 593, 
632,665, 666, 698, 718, 722, 761, 770, 
774 (bis), 842 (bis), 861 (bis). 

Problems, 151, 250, 500, 559, 564. 

Rhetoric, 260, 329, 343, 469, 522, 548, 
565, 566, 725, 727, 824, 860. 

Rhetoric to Alexander, 164, 277, 567, 861, 
862. 

Rights ofWar, 22. 

On Sleep and Vigil, 833. 

Sophistical Refutations, 693. 

Topics, 43, 491, 512 (bis), 559, 566. 
Arnobius (d. c. 327), African rhetorician. 

Against the Heathen (Adversus Gentes), 
71,241,356,518,524,637. 
Arnold of Liibeck (d. 121 2), German Bene- 
dictine, continuator of Helmold. 

Derelictorum Helmoldi Supplementum, 652. 
Arrian (Flavius Arrianus, fl. 136), Greek 
historian. 

Anabasis of Alexander (edit. Abicht, 
Leipzig, 1889), 128, 170, 279, 403, 
445-^> 53 6 (bis), 620 (bis), 648, 657, 

725, 739, 74 1 , 744, 7^- 
Epictetus (edit. Hercher, Leipzig, 1885), 

40, 789. 
Indtca (edit. Hercher, Leipzig, 1885), 
115. 
Arrianus (2d century), Roman jurist, 247. 
Artemidorus the Daldian (fl. 160), Greek 
dream-interpreter. 
Oneirocritica, 235. 



Arumaeus, Dominicus (1579-1637), Dutch 

jurist. 

Discourses on the Golden Bull (Discvrsus 

Academici ad Bullam Auream Caroli 

IV Imperatoris), 805. 

Aschaffenburg, see Lambert von Aschaffen- 

burg. 
Asconius Pedianus, Quintus (c. 3-c. 88), 
Roman commentator. 
On Cicero y s Against Verres, 589, 661, 673, 

679. 
On Cicero^s For Milo, 251. 
Aspilcueta, Martin, see Navarrus. 
Asterius (c. 340-c. 410), Bishop of Ama- 
sea. 
Homilies, 507. 
Athanasius, St. (c. 293-373), Greek Father 
of the Church. 
Letter to the Monks, 517, 520, 552. 
Synopsis of Holy Scriptures (Synopsis 5. 
Scripturae), 50. 
Athenaeus (fl. 200), Greek antiquary. 
Banquet of the Learned, 237, 255 (bis), 
256, 402, 765. 
Athenagoras (fl. 177), Greek philosopher. 
Apology for the Christians (Legatio pro 
Christianis), 83. 
Attaliates, Michael (nth century), Byzan- 
tine statesman and historian. 
Pragmatica, 211. 
Synopsis, 209, 272. 
Auctor Imperfectus (6th century), Latin 
Arian. 
On Matthew (work appeared erroneously 
under the name of St. John Chryso- 
stom), 400. 
Augustine, St. (354-430), Latin Father of 
the Church, 93, 718. 
Against the Academics (Contra Aca- 

demicos), 491. 
Against Adimantus (Contra Adimantum), 

412. 
De Bono Conjugali, 248, 368. 
On Christian Doctrine (De Doctrina 
Christiana), 12, 15, 36, 234 (ter), 277, 
563, 608. 
On the City ofGod (De Civitate Det), 1 1 1 , 
141, 154, 170, 204, 235, 239, 244, 246, 
262, 351, 460 (bis), 486, 506, 521, 548 
(bis), 55 6 , 557, 5 6 5 (bis), 574, 57 6 , 577, 
59, 59i, 631, 6 32, 6 33, 6 5, ^S7> 66*i 
753, 7 6 5, 77* : 
Contra Cresconium Grammaticum, 64. 
Confessions (Confessiones), 25 (bis), 139. 



Index of Authors Cited 



893 



Augustine, St. (continued) 

De Conjugiis Adulterinis ad Pollentium, 

481, 642 (ter). 
On the Customs oftbe Catholic Church (De 

Moribus Ecclesiae Catholicae), 622, 765. 
Enchiridium, 470, 611, 614. 
Contra Epistolam Manichaei, 520. 
Evangelical Questions (Quaestiones Evan- 

geliorum), 482. 
Expositio Quarundam Propositionum ex 

Epistola ad Romanos, 146. 
On Faith and Works (De Fide et Operibus), 

83, 248, 320. 
Against Faustus (Contra Faustum Mani- 

chaeum), 69, 98, 237, 556, 591, 642. 
On Free Will (De Libero Arbitrio), 93, 175, 

182, 464, 584, 591. 
Against Gaudentius (Contra Gaudentium), 

460. 
Questions on Heptateuch (Quaestiones in 

Heptateuchum), 96, 154, 172, 197 (bis), 

475, 5 2 3, 534, 6o6 , 6o 7, 6l8 ( bis )- 

On the Gospel of John (In Joannis Evan- 
gelium), 147, 553. 

Letters (Epistolae), 25 (bis), 64, 68 (ter), 
7 6, 77 , 86, 93, 154, 231, 327, 357, 364 
(bis), 372, 373, 376, 460, 484 (bis), 501 
(ter), 501-2, 518, 519, 538, 539, 568, 
5 6 9, 576> 588, 59> 599 ( bis ), ^ 01 , 6l 3, 
718, 719, 737, 74 2 > 79 2 ( bis ), 86r - 

Against Lying to Consentius (Contra Men- 
dacium ad Consentium), 607, 618. 

On Lying (De Mendacio), 610 (ter). 

De Magistro, 619. 

On Order (De Ordine), 558. 

Against Petilianus (De Unico Baptismo 
contra Petilianum), 489. 

Principles of Rhetoric (Principia Rhe- 
torices), 410. 

On Psalms (Enarrationes in Psalmos), 154, 

35 2 , 479, 5 2 4> 6l 7- 
Questions on the Old and New Testaments 

(Quaestiones Veteris et Novi Testa- 

menti), 492. 
De Rebus in Arelatensi Concilio Gestis, 82. 
Retractions (Retractiones), 463. 
On the Sermon of Our Lord on the Mount 

(De Sermone Domini in Monte), 76. 
Sermones, 86, 147 (bis), 269, 270, 320, 372, 

522 (ter), 586, 611,785. 
On the True Religion (De Vera Religione), 

2 5> 497- 
On the Utility of Belief (De Utilitate 
Credendt), 519. 



Aulus Gellius, see Gellius, Aulus. 

Aurelius Antoninus, Marcus (1 21-180), 

Roman Emperor, commonly called 

Marcus Aurelius, the Philosopher, 249, 

540. 

Meditations, II, 12 (ter), 14, 16 (ter), 18, 

38-9, 379> 495> 49 8 > 5 2 *, 53. 
Aurelius Victor, Sextus (fl. 350), Roman 
historian, 460. 
On the Caesars (De Caesaribus), 388. 
Epitome de Caesaribus, III, 145, 246, 

562. 
On Famous Men (De Viris Illustribus 

Urbis Romanae), 281, 407, 655, 6 7 6. 
Origo Gentis Romanae, 287. 
Ausonius, Decimus Magnus (c. 309-394), 
Latin poet. 
Cupido Cruciatur, 722. 
Technopaegnion, 538. 
Authenticum, see Corpus Iuris Civilis : 

Novels. 
Averroes, or Ibn-Roshd (d. 1198), Arabian 
philosopher. 
Commentary on AristotWs Metaphysics, 
146. 
Ayala, Balthazar de (c. 1548-15 84), Spanish 
jurist. 
De Iure et Officiis Bellicis et Disciplina 
Militari, 22, 23, 98, 551, 553, 639. 
Aymo, see Cravetta, Aimone. 
Aymoinus, see Aimoin. 
Aymus, Baptista (fl. 1570), Italian jurist. 

De Alluvionum Iure Universo, 229. 
Azor, Juan (15 3 3-1 603), Spanish Jesuit and 
theologian, 506. 
Moral Institutes (Institutiones Morales), 

i5 8 > 375, 55 2 - 
Azpilcueta, Martin, see Navarrus. 

Baba Kama, a Talmudic treatise, 273, 329, 

3 6 9, 393, 434, 544- 
Balbus, Joannes Franciscus (fl. 15 10), jurist. 

De Praescriptionibus, 224, 228. 
Baldus deUbaldis (1 327-1400), Italianpost- 
glossator, 213, 428. 
On Code (Commentarius in Codicis Libros 
Novem Priores), 171, 172, 175 (bis), 

2 5 2 , 333, 3 8 4, 6 3 8 - 
Consilia, 197, 261, 592, 626, 652. 
On Decretals (Commentarius in Decretales), 

261, 288. 
On Digest (Commentarius in Digesta), 137, 

184, 213, 326, 331, 348, 383, 384, 385, 

628, 646. 



8 9 4 



Index of Authors Cited 



Baldus de Ubaldis [continued) 

On Feuds (Lectura super Libros Feudorum), 

33- 
De Statutis, 835. 
Balsamon, Theodore (fl. 1193), Greek 
canonist. 
On Photius 1 Nomocanon, 87, 215 (bis), 326, 
484. 
Banez or Bannez, Domingo (1 528-1604), 
Spanish Jesuit and theologian. 
On II. ii (Scholastica Commentaria in 
Secundam Secundae Thomae Aquinatis), 
173, I75 s 593,694. 
Barbatia, Andreas (c. 1400-1479), Italian 
canonist. 
Consilia, 415. 
Barclay, William (c. 1540-1606), Scotch 
jurist. 
De Regno et Regali Potestate . . . adversus 
Monarchomachos, 150 (bis), 157. 
Barnabas, see Bible. 

Bartolus of Sassoferrato (1 3 1 3-1 357), Italian 
jurist, 213. 
On Code (Commentarius in Libros IX 

Codicis Priores), 428. 
On Digest (Commentarius in Tria Digesta), 
98 (bis), 165 (bis), 172, 228 (bis), 252 
(bis), 264, 341, 385, 414, 551, 670, 696 
(bis), 712, 758, 835 (ter), 851. 
On Reprisals (De Represaliis), 98, 268, 

626, 628, 629. 
Tyberiad (Tractatus de Fluminibus seu 
Tyberiadis), 299. 
Basil I (c. 820-886), surnamed the Mace- 
donian, Emperor of the East. 
Paraeneticon ad Leonem Filium, 488. 
Basil, St. (c. 329-379), commonly called 
Basil the Great, Bishop of Caesarea, 90. 
Hexaemeron (Homiliae Novem in Hexae- 

meron), 199. 
Homilies on Psalms (Homiliae in Psalmos), 

357- 
Letters to Amphilochius (Epistolae Cano- 
nicae ad Amphilochium, 94, 247, 367, 

577- 

Basihca, Greek code of law, 210 (bis). 

Batrachomyomachia (Battle of the Frogs and 
Mice), an epic poem falsely attributed 
to Homer, probably written by Pigres, 

Bavarian Law, see Law of the Bavarians. 
Baysio, Guido de (fl. 1290), cited as Archi- 
diaconus, Italian canonist. 
On Decretum (Rosarium Decretorum), 835. 



Bede, Venerable (c. 674-735), English his- 
torian and commentator. 
Ecclesiastical History (Historia Ecclesias- 
tica Gentis Anglorum), 287, 517, 594, 

734- 
On Galatians, 568. 
Bellay, Martin du (d. 1559), French his- 
torian. 
Historic Memoirs from 1513 to 1547 
(Memoires), 441. 
Belli, Pierino (1 502-1 575), Italian jurist, 
sometimes cited as Bellini. 
De Re Militari et de Bello, 585, 686. 
Belluga, Pedro (i^th century), Spanish 
jurist. 
Speculum Principis, 263, 390. 
Belvisio, Jacobus de (c. 1 270-1 335), Italian 
civilist. 
On Authenticum (Casus Breves in Authen- 
ticum), 627. 
Bembo, Pietro (1470-1547), Italian car- 
dinal and scholar. 
History of Venice (Historia Veneta), 104, 
119, 192, 198, 199, 254, 636, 646, 647, 
652, 659, 694, 731,749, 757, 823. 
Ben Gerson, see Gersonides. 
Ben-Israel, see Manasses Ben-Joseph-Ben- 

Israel. 
Benjamin of Tudela (i2th century), French 
rabbi. 
Itinerary, 752. 
Bernard, St. (1 090-1 153), of Clairvaux, 
French ecclesiastic. 
Letters (Epistolae), 553. 
Bertachinus, see Firmanus. 
Bezarrus, see Bizarri. 
Bible: Old Testament : 

Genesis, 35, 40, 41, 54, 57, 58, 59 (bis), 
60, 186, 188, 189 (bis), 239, 244 (bis), 
265, 274 (bis), 336, 365, 370, 371, 372, 
397 (bis), 399, 45^, 459, 515, 538, 593, 
601, 607, 613, 663 (quater), 780, 781. 
Exodus, 37, 46, 48, 55, 56, 60, 62 (quin- 
quies),7l, 76, 77,92, 103,127,151,180, 
233, 247, 250, 251, 351, 365, 366, 372, 
422, 478, 481, 482, 498, 499, 500, 530, 
541 (bis), 764 (ter). 
Leviticus, 37, 46 (bis), 60 (bis), 62 (ter), 75 
(bis), 235, 242, 243, 246, 349, 365, 369, 

372, 398, 432, 456, 478, 493, 515, 785. 

Numbers, 46, 48, 60, 62 (bis), j6, 197, 222, 

232, 233 (bis), 240, 276, 331, 365, 369, 

49, 457, 459, 475, 477, 482, 57, S77> 
664, 685, 719, 734, 783. 



Index of Authors Cited 



895 



Bible : Old Testament (continued) 

Deuteronomy, 45, 46 (bis), 55, 62 (quater), 
95, 107 (bis), 127, 140 (bis), 151, 181, 
235 (ter), 240, 266, 277 (bis), 320, 366 
(ter), 397 (ter), 398, 399 (bis), 400, 401, 
457, 464, 467, 477, 482, 499 (bis), 511, 
515 (ter), 530 (bis), 542, 577, 594, 635, 
648 (bis), 657, 661, 664, 695, 728, 734, 
742, 746, 762 (bis), 763, 764, 767, 768. 
Joshua, 117, 140, 365, 366 (quater), 367, 

400, 541, 578, 609, 664, 748. 
Judges, 55, 75, 162, 205, 220, 399, 473, 
527 (bis), 632, 668. 

1 Samuel or 1 Kings, 55, 107 (quater), 

115, H> H7, 150 ( bis )> *Sh l S 2 , 225, 
327, 368, 399 (bis), 459, 588, 594, 608, 
618, 664, 668, 677, 685, 736 (bis). 

2 Samuel or 2 Kings, 55, 107, 115, 235, 

367, 39 8 > 399 ( bis )> 4 00 > 449> 457> 54 J > 
570, 686. 

1 Kings or 3 Kings, 46, 107, 111,115,116, 

117, 200, 365, 367, 386, 398, 399 (bis), 
400,453,530,541,588,617. 

2 Kings or 4 Kings, III, 163, 185, 365, 
371 (bis), 401, 441, 530, 541, 542, 588, 
594, 618 (bis), 668, 738, 748. 

1 Chronicles or Paralipomenon, 127, 577, 
664. 

2 Chronicles or Paralipomenon, 117, 122 
(bis), 127 (bis), 161, 286, 400 (quin- 
quies), 573, 664. 

Nehemiah or 2 Esdras, 162, 331. 

Judith, 95 (bis), 244. 

Job, 60, 269, 365, 378, 452, 459, 515, 

785. 
Psalms, 45, 49, 60, 62, 64, 107, 127 (bis), 

356 (bis), 365, 374, 466, 610, 648, 785. 
Proverbs, 60, 75, 187, 277, 331, 384, 401 

(quater), 467, 495, 563, 610 (bis), 785 

(ter). 
Ecclesiastes, 188, 452, 785. 
Song o/Songs or Canticle of Canticles, 371. 
Wisdom, 187, 360, 371, 491. 
Ecclesiasticus or Son of Sirach, 187 (bis), 

266, 762, 765. 
Isaiah, 40, 70, 74, 96, 278, 365 (bis), 400, 

401, 467, 719. 
Jeremiah, 40, 74, 110, 128, 181, 365, 373, 

454> 573> 607. 
Ezekiel, 40, 235, 356, 373, 496, 542. 
Daniel, 122, 134, 365 (ter), 543, 555, 661. 
Hosea, 365 (bis). 
Amos, 771. 

Jonah, 76, 365 (bis), 719, 734. 
1569-27 3 



Micah, 40, 504. 
Habakkuk, 365. 
Zachariah, 362. 

1 Maccabees, 107, 148, 384, 399 (ter), 477 

(bis), 651, 661 (bis). 

2 Maccabees, 46, 460, 684, 685. 

3 Maccabees, 478. 
Bible : New Testament : 

Matthew, 46, 61, 65 (bis), 66 (quinquies), 
67, 71 (bis), 72 (bis), 73, 75 (bis), 76 
(bis), 93 (bis), 95, 156, 163, 235 (bis), 
298, 312, 366, 369, 371 (bis), 377, 378, 
384, 401, 403, 479, 480, 481, 482, 486, 
508, 517 (bis), 553, 601, 612 (bis), 620 
(bis), 841. 

Mark, 66 (ter), 312, 471, 504, 517, 608. 

Luke, 65, 66 (sexties), 76, 94, 95 (bis), 107, 
128, 156, 354, 459, 464, 481, 493, 508, 
517 (ter), 552, 571, 608, 612, 785 (bis). 

John, 46, 66, 81, 95 (bis), 312 (bis), 398 
(bis), 465, 517, 553, 612 (bis). 

Acts of the Apostles, 46 (ter), 48, 64 (bis), 
65 (bis), 66 (bis), 67 (bis), 68, 69 (bis), 
71, 312 (bis), 398, 478 (bis), 482 (bis), 
515,587,608,612. 

Romans, 40 (bis), 47, 49, 50, 62 (bis), 64 
(bis), 69, 76 (ter), 93 (bis), 95, 96, 141, 

H7, 377 ( bis )> 432, 4 66 > 4 82 > 497> 5*5, 
517, 557 (bis), 567, 861. 

1 Corinthians, 69, 72, 76, 235, 238, 242, 

257> 331 ( bis )> 3 6o > 4 02 > 43, 482 (bis), 
551,553,586,641,719,824. 

2 Corinthians, 73, 78, 187, 272, 377 (bis), 
378 (bis), 402, 482, 483. 

Galatians, 48, 50, 208, 401, 517, 520, 615. 
Ephesians, 48, 69, 78, 234, 242, 257, 360, 

481, 569, 587 (bis), 588, 762, 765. 
Philippians, 69, 377. 
Colossians, 257, 481, 610, 762. 

1 Thessalonians, 95, 331, 377. 

2 Thessalonians, 95, 331, 402. 

1 Timothy, 63, 73, 76, 369, 377, 493, 554. 

2 Timothy, 68, 331. 
Titus, 187, 258. 

Hebrews, 50 (bis), 55, 62 (bis), 64, 331 
(bis), 365 (bis), 372, 399, 482 (ter), 493 
(bis), 513, 517, 663. 

James, 78, 79, 378, 494. 

1 Peter, 69, 95, 143, 147, 149, 153, 156, 

258, 595- 
17^,61,96,471,495. 
Revelation or Apocalypse, 69, 96, 187 

(bis), 378,498, 595.. 
Barnabas, 762. 



896 



Index oj Authors Cited 



Bizarri, Pietro (fl. 1550), Italian historian. 


Buchanan, George (1506-1582), Scotch 


History of Genoa (Senatus Populique 


historian. 


Genuensis Rerum Domi Forisque Ges- 


History of Scotland (Rerum Scoticarum 


tarum Historiae atque Annales, Ant- 


Historia), 263. 


werp, 1629), 105, 115, 158, 163, 403 


Burchard (d. 1025), of Worms, German 


(bis), 445, 543, 562, 635, 700, 820, 855 


theologian. 


(bis). 


Canonum Volumen, 481. 


On the Ptsan Jf ar (De Bello Pisano, Ant- 


BurgundianLaw, seeLazv of the Burgundians. 


werp, 1629), 119,647. 


Busbecq, Ogier Ghislain de (1522-1592), 


On the Venetian W ar (De Bello Veneto, 


Flemish scholar. 


Antwerp, 1629), 704. 


Epistolae Exoticae, 344, 696. 


Bocer,Henry(i6thcentury),Germanjurist. 


Letters of the Turkish Embassy (Epistolae 


De Collectis, 426. 


Turcicae Legationis IV), 255. 


Bodin, Jean (1530-1596), French political 


Butrio, Antonio de (c. 1 338-1409), Italian 


writer. 


canonist. 


On the Republic (De Republica, Frank- 


On Decretals (Commentaria in Quinque 


fort, 1609), 29, 228, 267 (bis), 381, 382, 


Libros Decretalium), 252. 


384, 389, 419, 436, 500, 696, 714. 




Boerius, see Bohier. 


Cabedo de Vasconcellos, Jorge (1559-1604), 


Boethius, Anicius Manlius Severinus (c. 


Portuguese jurist. 


480-524), Roman philosopher. 


Decisiones Lusitaniae Senatus, 298, 604. 


Arithmetic (Institutio Aritmetica), 311. 


Cacheranus, Octavianus (fl. 1590), Italian 


On Cicercfs Topics (In Ciceronis Topica), 


jurist. 


309, 701, 712. 


Decisiones Sacri Senatus Pedemontani, 102, 


On Geometry, 300. 


213, 420. 


Bohier, Nicolas de (1469-1539), French 


Caecilius Statius (d. c. 166 b.c), Latin 


jurist. 


comic poet. 


Decisions (Decisiones in Senatu Burd.iga.len- 


Fallacia, 74. 


sium Discussae ac Promulgatae), 252, 


Caepolla, Bartholomaeus (d. 1474), Italian 


659, 696 (ter). 


jurist, 213. 


On Decretum, 124. 


Consilia, 405, 817. 


Bonfini, Antonio (1427-1502), Italian lit- 


OnDigest, 341. 


terateur. 


De Servitutibus Rusticorum Praediorum t 


History of Hungary (Rerum Ungaricarum 


301. 


Decades), 159, 684. 


Caesar, Gaius Julius (100-44 B c Roman 


Boreo, 'John (Johann Borcholten, 1535- 


historian. 


1593, German jurist, or Vincentius 


Civil War (De Bello Civili), 375, 440, 


Boreus ?), 299. 


644, 794, 845, 862. 


Bossius, Aegidius (1488-1546), jurist. 


Gallic War (De Bello Gallico), 112, 135 


De Aquis et Fluminibus, 213. 


(bis), 198, 204, 214, 393, 632, 645, 697, 


Practica Criminalia, 659. 


739, 74 6 , 858. 


Bridget, St. (1 302-1 373), of Sweden. 


Cajetan, Cardinal (Thomas de Vio, 1469- 


Revelationes Brigittae, 267, 280. 


1534), Italian theologian, 397. 


Brocardus, see Burchard. 


On II. ii (Commentarium in S. Thomae 


Brodeau, Jean (1 500-1 563), French com- 


Summam Theologicam), 99, 173, 269, 


mentator. 


299, 322, 326, 327, 336, 369, 373, 401, 


cellanea, 752. 


43i, 433, 465, 556, 563, 575> 58i, 618, 


Bruning, Johann (i7th century), German 


633, 821 (bis). 


jurist. 


On Matthew (Commentarii in Evangelia), 


De Homagiis Subiectivis, 778. 


244. 


Brutus, Junius (Pseud. of Hubert Languet, 


Summula Percatorum, 757. 


1518-1581), French Protestant poli- 


Calderinus, Joannes (d. 1365), Italian 


tical writer. 


canonist. 


V indiciae contra Tyrannos, 1 | 


Consilia, 1 



Index of Autkors Cited 



897 



Callistratus (2d century b.c), Alexandrian 
grammarian. 
On Aristophanes, 765. 
Callistratus (fl. 200), Roman jurist. 

De Cognitionibus (in the Digest), 542. 
Camden, William (1551-1623), English an- 
tiquary and historian. 
Annals of the Reign of Elizabeth (Annales 
Rerum Anglicarum et Hibernicarum 
Regnante Elizabetha), .210, 214, 289, 
387, 389, 419, 427, 440, 443, 445, 527, 
533 (bis), 604 (quater), 605, 734, 845. 
de la Canaye, Philippe, Sieur du Fresne 
(1551-1610), French statesman and 
diplomatist. 
Letters (Memoires ou Recueil de Lettres), 

447, 713. 
Canibus, Joannes Jacobus de (d. c. 1494), 
Italian jurist. 
On Sext, 627. 
Canon Law, see Canons, Apostolic ; Corpus 

Iuris Canonici ; Council ; Synod. 
Canons, Apostolic, 88, 96, 245. 
Canticle of Canticles, see Bible. 
Capitolinus, Julius (3d or 4th century), 
Latin biographer, 65, 316. 
Albinus {Vita Clodii Albini), 316. 
Macrinus (Opellius Macrinus), 317. 
Marcus Antoninus the Philosopher (Marcus 
Antoninus Philosophus), 116, 451, 501, 

535, 739- 
Maximus and Balbinus (Maximus et Bal- 

binus), 774. 
Maximini (Maximini Duo), 317. 
Pertinax (Helvius Pertinax), 388, 724. 
Capitularies of the Franks (Capitularia 

Francica), 248, 460 (bis) ; see also 

Charlemagne ; Charles the Bald ; 

Louis the Pious. 
Cardinal, see Zabarella, Francesco. 
Carletti, Angelo, see Angelus de Clavasio. 
Carneades (c. 215-129 b.c), Greek philo- 

sopher, founder of the New Academy, 

10, 15 (ter), 347. 
Carthagena, Joannes de (d. 1617), Spanish 

theologian. 
Propugnaculum Catholicum de Jure Belli 

Romani Pontificis adversus Ecclesiae 

Jura Violantes, 22, 399. 
Cassian, John (c. 361-c. 435), monk and 

theologian, 610. 
Cassiodorus, Senator, Flavius Magnus 

Aurelius (c. 470-c. 570), Latin his- 

torian. 



Chronica, 280. 

On Friendship, see Peter of Blois. 
Institute of Holy Writ and On Dialectic 
(Institutiones Divinarum et Saecularium 
Litterarum), 27, 37. 
On the Soul (De Anima), 53. 
Variae, 12, 87, 91, 110 (bis), 111, 120, 
121, 127, 171 (ter), 203, 211, 239, 246, 
2 47, 2 57, 260, 267, 299 (bis), 302, 322, 
353 (ter), 437, 466, 474, 475, 501, 517, 
533, 554, 56i, 563, 623, 659, 709, 724, 
731, 750, 753, 784 (quater), 785 (ter). 
Cassius Dio, see Dio Cassius Cocceianus. 
Cassius Longinus, Lucius (fl. 110 b.c), 
Roman judge, cited by Aggenus Urbi- 
cus, 300. 
Castaldus, Restaurus (d. 1564), Italian 
civilist. 
Tractatus de Imperatore, 228, 384. 
Castrensis, Paulus (d. c. 1441), Italian jurist. 
Consilia, 385. 
On Code, 428. 

On Digest, 165, 185 (?), 326, 592, 849. 
Castro, Alphonsus de (14951558), Spanish 
Franciscan theologian. 
De Potestate Legis Poenalis, 387, 565. 
Cato, Marcus Porcius, surnamed Censorius 
(234-149 b.c), Roman statesman, 356. 
Origins (De Originibus), 202, 800. 
On Farming (De Re Rustica), j66. 
Cedrenus, Georgius (nth century), Greek 
monk. 
Histories (Synopsis Historiarum), 121, 299. 
Celsus, Aurelius Cornelius (ist century), 
Latin writer on medicine. 
De Medicina, 194. 
Celsus, Publius Juventius (2d century), 
Roman jurist, cited in Digest, 209, 210 
(bis), 622, 66y, 672, 823. 
Chalcocondylas, Laonicus (fl. 1450), Byzan- 
tine historian. 
Histories (Historiae, ed. Bekker, Bonn, 
1843), 114, 118 (ter), 119, 128 (ter), 
129, 528, 639, 647, 650, 685, 697, 721, 
738. 
Charlemagne (742-814), King of France 
and Emperor of the West. 
Capitularies (Capitula), 180, 785. 
Supplement to Bavarian Law (Addita- 
mentum ad Legem B aioariorum) , 736. 
Charles the Bald (823-877), King of France. 
Capitularies (Capitula), 88, 119, 144, 166, 

200, 318 (bis), 525, 563, 564, 764. 
Edictum Pistense, 257, 306, 708. 



302 



898 



Index of Authors Cited 



Charondas (fl. 650 b.c), Greek legislator, 

449- 
Chassaneus (Chasseneux), Barthelemy de 

(1480-1541), French jurist and states- 

man. 

Catalogus Gloriae Mundi, 228, 422, 552, 

805. 

Consuetudines Ducatus Burgundiae acfere 

Totius Galliae, nj. 

Chifflet, Jules (d. c.1670), French historian. 

Le Voyage de Prince Don Fernand Infant 

d'Espagne (}), 301. 

Choniates, Nicetas, see Nicetas Acomina- 

tus. 

Choppin, Rene (15 37-1 606), French lawyer 

and antiquarian. 

De Domanio Franciae, 201, 291. 

Christian VVriter, see Pseudo-Justin Martyr. 

Chronicles, see Bible. 

Chrysippus (280-208 b.c), Stoic philo- 

sopher, 14, 189, 240, 372 (bis), 420, 

509,762. 

Chrvsostom, Dio, see Dio Chrysostom. 

Chrysostom, St. John (344-407), Greek 

Father of the Church, 438, 610. 

On Alms (De Eleemosyna Sermo), 1 36, 862. 

Against Those Who Anathematize (De 

I Anathematizandis Vivis vel De- 

functis), 520. 

On the Acts of the Apostles (Commentarius 

in Acta Apostolorum), 554. 

To the Believing Father (Ad Patrem 

Fidelem), 66, 81, 482. 

That Christ is God (Adversus Judaeos et 

Gentiles Demonstratio), 43, 70. 

On First Corinthians (Homiliae XLIV in 

Epistolam Primam ad Corinthios), 14, 

34, 46, 50, 70, 76 (bis), 80, 147, 231, 

234 2 39, 320, 326, 357, 4 6 9, 4 8 3, 5*9, 
588, 609 (bis), 642. 
On Second Corinthians (In Secundam ad 
Corinthios Epistolam Commentarius), 

. 73, 74, 78, 47i, 476, 495, 497, 522. 
On the Devil as Tempter (De Diabolo 

Tentatore), 50. 
On the Earthquake (In Terrae Motum et 

in Divitem et Lazarum), 464. 
On Ephesians, 11, 17, 50, 142, 231 (bis), 

306, 476, 479, 495, 521, 554, 557, 587, 

766. 
On Fasttng (Septem Sermones de Jejunto), 

50, 357- 
That Faults are the Result of Neglect, see 

On the Devil as Tempter. 



On Galatians (In Epistolam ad Galatas 

Commentarius), 460, 497, 519, 538, 615. 
On Genesis, 541. 

On Gentleness (De Clementia), 569. 
Against the Jews (Adversus Judaeus 

Orationes), 76, 144, 484, 522. 
Commentary on John (Commentarius in 

Sanctum Joannem Apostolum et Evan- 

gelistam), 349, 517. 
On Lazarus, see On the Earthquake. 
On Matthew, 483. 
On the Obscurity of the Prophecies (De 

Prophetiarum Obscuritate), 494. 
On Penitence (De Poenitentia), 464, 482, 

486, 617, 642 (bis). 
Praise of St. Eustathius (Laudatio S. 

Patris Nostri Eustathii Antiochiae 

Magnae Archiepiscopi), 508. 
On the Priesthood (De Sacerdotio), 497, 

554 (ter), 606, 607, 609, 612, 617, 618. 
On Providence (De Fato et Providentia), 

498, 590, 727. 
On Romans (Commentarius in Epistolam 

ad Romanos), II, 41, 46 (bis), 47 (ter), 

49, 50 (bis), 65, 74, 76, 141, 142, 495, 

497 ( bis ), 504 (bis), 522, 642. 
That the Son Is Equal to the Father (Contra 

Anomoeanos), 63. 
To Stagirius (Ad Stagirium de Tristitia), 

449- 
On the Statues (Homihae XXI de Statuis), 

39, 42, 43, 4 6 , 53, 74, 86 , x 4 2 (bis), 3 6 2, 

379 ( ter ), 493, 494, 522, 523, 525 (bis), 

535, 5 68 , 5 6 9- 
To Stelechius (Ad Stelechium de Compunc- 

tione), 199. 
On First Thessalonians, 554. 
On First Timothy (In Epistolam Primam 

ad Timotheum Commentarius), 152, 234, 

277. 
On Second Timothy (In Epistolam Srcun- 

dam ad Timotheum Commentarius), 144. 
On Titus (In Epistolam ad Titum Com- 

mentarius), 554. 
To the Unbelieving Father (Ad Infidelem 

Patrem), 587. 
On Virginity (De Virginitatc), 49, 63. 
Chytraeus, David (1530-1600), German 

Protestant theologian and historian. 
History of Saxony (Chronicon Saxoniae), 

159. 
Cicero, Marcus Tullius (106-43 b.c), 

Roman philosopher and orator, 159, 

35 6 , 491, 53i, 5 82 - 



Index of Authors Cited 



8 99 



Cicero (continued) 

Academics (Academicae Quaestiones), 410, 

515. 
On the Agrarian Law against Rullus (De 

Lege Agraria contra P. Servilium Rul- 

lum), 118, 119, 225, 314, 665. 
For Balbus (Pro L. Cornelio Balbo), 9, 254, 

379, 380, 408, 643, 797. 
Brutus, 422 (bis), 800. 
For Caecina (Pro A. Caecina), 259, 412, 

414, 422 (quater), 467, 529. 
For Cluentius (Pro A. Cluentio), 144, 242, 

558, 742- 

On the Commonwealth (De Repubhca), 39, 
129,170,631. 

On the Consular Provinces (De Provinciis 
Consularibus), 126, 460. 

For King Deiotarus (Pro Rege Deiotaro), 
225,380,645,731. 

On Divination (De Divinatione), 754. 

On Duties (De Officiis), 17, 33, 34, 36, 39, 
41, 54 (bis), 105, 110, 131, 164, 173, 
189 (bis), 190 (bis), 195, 196, 220, 221, 
225, 275, 276, 277 (quater), 300, 321, 
322, 328, 330, 332, 347, 348 (quater), 
350, 362 (bis), 363, 364 (bis), 368, 373 
(ter), 374, 398, 409, 410, 426 (bis), 436, 
445, 480, 503, 548, 558 (bis), 560, 562, 
570 (bis), 572, 582 (bis), 607, 613, 614, 
633, 652, 658, 665, 717 (bis), 722 (bis), 
1*1, 730, 733 (bis), 739, 748, 765, 769, 
770 (bis), 782, 788, 793 (bis), 794 (bis), 
799, 805, 811, 812, 851, 853, 855, 
860. 

On Ends (De Finibus Bonorum et Ma- 
lorum), 51, 80, 170, 186, 277, 509, 580, 
582,631,708,792. 

For Flaccus (Pro L. Flacco), 661. 

For Gabinius (Pro A. Gabinio), 819, 
862. 

On His House (De Domo Sua), 672, 747. 

On Invention (De Inventione), 422, 427, 
453,472,514,530,574,680,837. 

On Laws (De Legibus), 104, 1 15, 452, 453, 

Letters to Atticus (Epistulae ad Atticum), 

162, 573 (bis), 575, 749 (ter), 759, 775 

(bis), 777. 
Letters to Brutus (Epistulae ad M. 

Brutum), 494, 524, 537, 700, 731. 
Letters to Friends (Epistulae adFamiliares), 

14, 17, 54, 115, 162, 251, 358, 607, 632, 

6j6, 861. 
Letters to his Brother Quintus (Epistulae 



ad Quintum Fratrem), 106, 490, 491, 

773-. 
For Ligarius (Pro Q. Ligario), 568, 570, 

611, 646, 724. 
For the Manilian Law (De Imperio Cn. 

Pompei), 449, 578, 784. 
For Marcellus (Pro M. Marcello), 645, 

731 (bis). 
For Milo (Pro Milone), 55, 56, 94, 175, 

503, 607, 643. 
For Murena (Pro Murena), 490. 
On the Nature of the Gods (De Natura 

Deorum), 509, 513, 514, 543. 
On the Orator (De Oratore), 333, 422 (bis), 

529 (bis), 714, 800. 
Paradoxes (Paradoxa Stoicorum), 410. 
Philippics (Philippicae Orationes), 109, 

161, 194, 432, 439, 443, 630, 832. 
Against Piso (In L. Calpurnium Pisonem), 

523- 
For Gnaeus Plancius (Pro Cn. Plancio), 

431,607. 
For Publius Sestius (Pro P. Sestio), 580, 

6 54- . 
For Quintius (Pro P. Quinctio), 451, 724. 

For Rabirius (Pro C. Rabirio Perduellionis 

Reo), 849. 
For Rabirius Postumus (Pro C. Rabirio 

Postumo), 643. 
On the Response of the Soothsayers, 438, 

439- 
For Roscius the Comic Actor (Pro Q. Roscio 

Comoedo), 379, 860. 
For Sextus Roscius Amerinus (Pro Sex. 

Roscio Amerino), 500. 
Against Rullus, see On the Agrarian Law. 
For Sulla (Pro P. Sulla), 496. 
Topics (Topica), 529, 701, 712. 
Tusculan Disputations (Tusculanae Dis- 

putationes), 43, 452, 476, 643. 
Against Verres (In C. Verrem), 351, 427, 

438, 578, 589, 6 5o> 658, 660, 683, 711, 

733, 751 (bis), 754, 780 (bis), 786, 799. 
Cirier, Jean le, see Lecirier, Jean. 
Clarus, Julius (1525-1575), Italian jurist, 

339, 426, 793. 
Claudian (Claudius Claudianus, c. 370-c. 

404), Latin epic poet. 
On the Fourth Consulship of Honorius 

(Panegyricus de Quarto Consulatu 

Honorii Augusti), 126, 643. 
On the Sixth Consulship of Honorius 

(Panegyricus de Sexto Consulatu Honorii 

Augusti), 317,621. 



900 



Index of Authors Cited 



Claudian (continued) 

On the Consulship of Manlius Theodorus 

(Panegyricus Dictus Manlio Theodoro 

Consuli), 480. 
On the Consulship of Stilicho (De Con- 

sulatu Stilichonis), 213, 317, 653, 771, 

784. 
Agatnst Eutroptus (In Eutropium), 144, 

317. 
Against Rujinus (In Rufinum), 81. 

Gildo (De Bello Gildonico), 450, 
456, 652. 
Clavasio, Angelus de, see Angelus de 

Clavasio. 

Clement of Alexandria (Titus Flavius 

Clemens, d. c. 2 1 7), Greek Father of the 

Church, 47, 610. 

The Instructor (Paedagogus), 84, 469, 762. 

Miscellanies (Stromata), 55, 84, 379, 588, 

609, 616, 642, 665. 

Exhortation to the Pagans (Protrepticum), 

511. 

Clement, St. (Clement of Rome, d. c. 100), 

Pope, reputed author of Constitutiones 

Apostolorum, 63, 72, 84 (bis), 111, 143, 

144, 248, 400, 401, 479, 508, 517, 762. 

Cleobulus (6th century b.c), one of the 

Seven Wise Men of Greece, 610. 
Code of Justinian, see Corpus luris Civilis. 
Code of Theodosius, see Theodosian Code. 
Colossians, see Bible. 

Columella, Lucius Junius Moderatus (ist 
century), Latin writer on agriculture. 
On Farming (De Re Rustica), 211, 642, 

751. 
Comines, Philippe de (1445-1509), Flemish 

historian. 
Memoires, 185, 388. 
Comnenus, Manuel, see Manuel Comnenus. 
Connan, Francois de (1508-155 1), French 

jurist. 
Commentaria Juris Civilis, 299, 306, 307, 

328 (ter), 329(bis), 331, 427. 
Connestagio, Girolamo de Franchi (d. 

1635), Archbishop of Capua. 
On the Union of the Kingdoms of Castille 

and Portugal (DeW Unione del Regno 

di Portogallo alla Corona di Casti- 

glia),s6i. 
Conon (fl. 250 b.c), Greek astronomer, 311, 

312. 
Conrad of Lichtenau (d. 1240), Bavarian 

chronicler. 
Cbronicon Urspergense } 99, 748. 



Conrad Vicerius, German historian of un- 
certain date. 
Life of Henry VII (Libellus de Rebus 
Gestis Henrici VII), 292. 
Consolato del Mare, i^th-century code of 

sea-laws, 603, 66j, 668, 687, 712. 
Constantine VII (905-959), Emperor of the 
East, surnamed Porphyrogenitus. 
On Baba Kama, 369, 481 (bis). 
On the Government qf the Empire (De 
Administrando Imperio), 217, 287, 821. 
On the Provinces (De Provinciis Regni 

Byzantini), 213. 
See also Selection on Embassies. 
Constitutions of St. Clement, see Corpus 

luris Canonici. 
Constitutions of France (Constitutiones Gal- 

liae), 437 (bis), 667, 687, 688, 712. 
Constitutions of Sicily (Constitutiones in 

Sicilia Friderici), 299. 
Constitutions of Spain (Constitutiones Regni 

Hispaniae), 696, 711. 
Corinthians, see Bible. 
Corippus, Flavius Cresconius (6th century), 
African epic poet. 
De Laudibus Iustini Minoris, 387. 
Corpus Iuris Canonici (Leipzig, 1 879-1 881) : 
Decretum Gratiani, j6, 89, 94, 98, 145, 
147, 166 (bis), 182, 237 (bis), 238 (bis), 
247, 248, 257, 258, 270 (bis), 319, 320, 
353, 357, 3% 3^5, 3^8 (ter), 369, 371, 
372 (bis), 388, 466, 479, 481, 483 (bis), 
484, 486 (ter), 489, 493, 501, 516, 518- 
20, 524, 554 (bis), 557, 5^5, 5^8, 586, 
590, 591, 607 (bis), 611, 617, 642 (bis), 
694,711,718,719,737,842. 
Decretals (Dccretales Gregorii P. IX), 87, 
89, 96 (bis), 180, 182, 248, 249, 267, 
2 7h 284, 374, 375, 376, 377, 380 (bis), 
386, 387, 389,426, 430, 481, 502, 543, 
554 (quater), 602, 603 (bis), 608, 623 
(bis), 711,737, 750, 838, 839. 
Sext (Liber Sextus Decretalium Bonifacii 

P.VIII), 252, 386,623,671,841. 
Extravagantes tum Viginti Joannis P. 
XXII tum Communes, 603 (bis). See 
also commentators upon the various 
parts of the Corpus. 
Corpus Iuris Civilis (Berlin, 1906, 191 1, 

Institutes ofjustinian (lustiniani Institu- 
tiones), 103, 157, 209 (bis), 233, 270, 
272, 285, 308 (bis), 309, 329, 349, 522 
(bis), 624, 666, 691, 716, 767, 



Index of Authors Cited 



901 



Corpus Iuris Civilis (continued) 

Digest of Justinian (Iustiniani Digesta), 
H> 34. 39 ( bis )> 54 5 6 (quater), 57 
(bis), 72, 85, 91 (bis), 97 (bis), 116 (bis), 
129, 131 (ter), 132, 140, 142 (ter), 157, 
164, 181 (ter), 190 (bis), 193 (quater), 
1 96, 20 1 , 206, 209 (ter) , 2 1 o (quinquies) , 

211, 212, 2l6, 217, 2l8 (bis), 221, 222 

(nonies), 223 (bis), 224, 227 (bis), 238 
(bis), 240 (ter), 248, 249, 250 (ter), 252 
(octies), 253, 254 (bis), 265, 267, 268 
(quinquies), 269, 270 (bis), 271, 272 
(quater), 285, 287, 288 (bis), 293, 296 
(ter), 297 (bis), 298, 299 (quater), 301 
(quinquies), 302 (sexties), 303 (quater), 
305 (bis), 307 (quinquies), 308 (ter), 
309 (quinquies), 311 (decies), 313 (bis), 
321, 322 (quinquies), 323 (sexties), 325 
(octies), 326 (ter), 327, 329 (quater), 
335, 338, 339 (quater), 344 (bis), 345, 

34 6 > 347 34 8 > 349> 35 h 35*, 354 
(quater), 355 (bis), 356 (ter), 357, 359, 
360 (ter), 361 (ter), 371, 374 (ter), 375, 
376,378(bis),383,384(ter),387(quater), 

39 J > 394> 4 I0 > 4 ri > 4 I2 > 4 l8 > 4 2 3 ( bis )> 
425, 428 (bis), 430, 432 (bis), 433, 434, 
438 (bis), 447, 451 (bis), 457 (bis), 465, 
47> 494> 5> 5 OI > 5 02 (bis), 507 (bis), 
509 (bis), 514, 524 (decies), 529 (bis), 
535> 537 (quinquies), 539 (bis), 542, 543, 

544> 54 8 > 55 2 > 5 6 4> 5 82 > 5 8 9> 59 (quin- 
quies), 606 (bis), 607, 608 (bis), 622, 
623, 627 (bis), 630 (quater), 632, 642, 
647, 654, 658, 659 (ter), 662 (bis), 665, 
666 (quinquies), 66j (ter), 668, 671 
(quater), 672 (quater), 673, 683 (bis), 
689, 690 (ter), 691 (bis), 692 (bis), 693 
(bis), 694 (bis), 700 (bis), 701, 702, 703 
(quinquies), 705 (ter), 706 (quater), 
707 (quater), 708, 709 (quinquies), 710 
(ter), 711 (ter), 712 (octies), 714 (bis), 
717, 718, 719, 727 (bis), 753, 760 (ter), 
766 (bis), y6y (bis), 771 (bis), 778 (ter), 
788, 800, 808, 809 (bis), 814, 816, 819 
(bis), 823 (bis), 829, 830, 833, 834, 835, 
836, 837 (bis), 839, 840, 841 (bis), 843, 
844 (bis), 845, 846 (quater), 857. 
Code ofjustinian (Codex Iustinianus), 28, 
85 (bis), 86, 89, 97, 125 (bis), 138, 142, 
160, 164, 165 (bis), 213, 231, 238,252 
(ter), 267 (bis), 268, 270 (bis), 271, 274, 
276 (ter), 309 (ter), 325, 333, 338, 339, 
34 J > 353, 355, 35 6 > 361 (bis), 374, 383 
(bis), 387 (bis), 414, 428 (bis), 457, 465, 



471, 476 (bis), 487, 508, 510, 519, 539, 

540, 543, 623 (quater), 627, 671, 679, 

705, 708 (quater), 710, 727, 750, 789 

(bis). 
Novels (Iustiniani Novellae), 28, 224, 267, 

272, 276, 293, 358, 374, 623, 627, 711. 
Edicts (lustiniani XIII Edicta Quae 

Vocantur), 224. 
Corsetti, Antonio(d. I503),ltalian canonist. 
De Excellentia Regia, 228, 264. 
De Prole Regali, 290. 
Costa, Manuel de (d. 1604), Portuguese 

canonist. 
De Rebus seu Dispositionibus Dubiis, 293. 
Cothmann, Ernest (1557-1624), German 

jurist. 
Consilia, 120, 311, 426, 441, 659. 
Council o : 
Africa, 68. 
Ancyra, 497. 
Arles, 89 (bis). 
Carthage, 83. 
Chalcedon, 144, 552. 
Elvira, 87. 
Ilerda, 368 (bis). 
Nicaea, 87, 588. 
Orleans, 86, 460. 
St. Macra, 785. 
Seville, 711. 
Soissons, 144. 

Toledo, 89, 144, 365, 387, 543, 544, 551. 
Councils of France (Concilia Galliae), 368 

(bis), 389, 531, 707, 785. 
Council, Trullan, 144. 
Covarruvias y Leyva, Diego de (15 12- 

1577), Spanish canonist, 29. 
De Contractibus, 333. 
On Clementines, 175, 178, 180, 556. 
On Decretals, 340, 342, 363, 375. 
On Sext, 192 (bis), 193, 195, 227, 228, 

229, 298, 299, 324, 326, 327, 333, 334, 

347> 43i, 435 (bis), 5 o8 > 59> 55*> 55 2 > 

565, 592, 618, 628, 684, 696, 713, 719, 

757, 761. 
De Matrimoniis, 486, 558, 851. 
Practicae Ouaestiones, 286, 287. 
De Praescriptionibus, 224. 
Variae Resolutiones ex pontificio regio et 

caesareojure, 203, 339-40, 359 (bis), 414. 
Crantz, see Krantz. 

Cravetta,Aimone(i 504-1 569),Italianjurist. 
Consilia, 264. 
De Antiquitatibus Temporum, 227, 228, 

389. 



902 



Index of Authors Cited 



Cromer, see Kromer. 

Cujas, Jacques (1520-1590), French jurist. 
Paratitla on Code (Paratitla in Libros IX 
Codicis Justiniani Repetitae Praelec- 
tionis), 357, 711. 
Observations (Libri AA/7// Observa- 
tionum), 211, 703 (bis), 711, 714. 
Curius Fortunatianus, see Fortunatianus, 

C. Chirius. 
Curtius, Rochus (fl. 15 15), Italian canonist. 

De Consuetudine, 263, 457. 

Curtius Rufus, Quintus (ist centuiy), 

Roman historian. 

Histories (Historiarum Alexandri Magni 

Libri Decem, Leipzig, 1919), 10, 128 

(ter), 152, 170, 172, 176, 194, 195, 212, 

250, 281, 316, 379, 446, 459, 536, 541, 

U 548, 655 (bis), 656, 675, 686, 697, 

733, 735^746, 749, 769, 773, 777- 
Curtius, Junior, Franciscus (d. 1533), 

Italian civilist. 
Consilia, 383, 389 (bis). 
Cyprian, St. (Thascius Caecilius Cyprianus, 

c. 200-258), bishop of Carthage. 
To Demetrianus (Ad Demetrianum), 153 

(bis), 763. 
On the Lapsed (De Lapsis), 89, 357. 
Letters (Epistolae), 82, 85, 87, 89 (quin- 

quies), 153, 170, 490, 508 (bis), 517, 

645. 
On Mortality (De Mortalitate), 658. 
On Patience (De Bono Patientiae), 72. 
Testimonies (Ad Quirinum, Testimonio- 

rum contra Judaeos Libri III), 73, 765. 
On the Unity of the Church (De Unitate 

Ecclesiae), 508. 
On the Vanity of Idols (De Idolorum 

Vanitate), 512, 517. 
Cyril, St. (d. 444), bishop of Alexandria and 

Doctor of the Church. 
On John (Commentarius in Joannem), 154. 
Against Julian (De Sincera Religione 

Christianorum adversus libros Athei 

Juliani), 18, 76, 126, 511, 521, 525, 

615,771. 

Damian, Peter (c. 1006-1072), Italian theo- 
logian. 
Letters (Epistolarum Libri VIII), 533. 
Daneau, Lambert (15 30-1 596), French 
Calvinist theologian. 
Political Aphorisms (Aphorismi Politici), 
146. 
Daniel, see Bible. 



Dante Alighieri (1 265-1 321), Italian poet. 

On Monarchy (De Monarchia), 552. 
d'Argentre, see Argentre, Bertrand d'. 
David, Rabbi, see Kimchi, David. 
Decianus, Tiberius (1508-1581), Italian 
jurist. 

Consilia, 397. 

Responsa, 252. 
Decio, Filippo (1454-1535), Italian jurist. 

Consilia, 405 (bis), 419, 628, 809, 811, 

817. 

Decisiones Genuenses, 712. 
Decretals, see Corpus Iuris Canonici. 
Decretum Gratiani, see Corpus Iuris Cano- 

nici. 
Decretum, On, 387 ; see also individual com- 

mentators. 
Democritus (b. between 490 and 460 b.c), 
Greek philosopher, 165, 453, 465, 476, 
477, 616. 
Demosthenes (c. 382-322 b.c), Greek ora- 
tor, 579. 
On Affairs in the Chersonese (De Cher- 

soneso), 18, 774. 
Against Aphobus (Adversus Aphobum), 

530. 
Against Aristocrates (Adversus Aristo- 

cratem), 179, 473, 625 (bis), 727-8. 
Against Aristogeiton (Adversus Aristogi- 

tonem), 329. 
Against Conon (In Cononem), 474. 
For the Crown of the Trierarchy (Pro 

Corona Trierarchias), 626. 
On the Crown (De Corona), 810. 
On the Freedom of the Rhodians (De 

Rhodiorum Libertate), 395. 
On Halonnesus (De Halonneso), 207, 212, 

4 J 7, 713. 
To Leochares (In Leocharem), 240, 245. 
Against Leptines (Adversus Leptinem), 215 

(bis),6i 3 . 
Letter of Philip (Philippi Epistola), 439, 

665,713. 
Letters (Epistolae), 494, 531, 761. 
Against Macartatus (In Macartatum), 

273. 
For Megalopolis (De Megalopolitis), 404. 
Against Meidias (Contra Midiam), 74. 
Against Neairas (In Neaeram), 476. 
Against Nicostratus (In Nicostratum), 708. 
Olynthiacs (Olynthiacae), 169. 
Against Pantaenetus (In Pantaenetum), 

357- 
Philippics (Philippica II), 212, 787. 



Index of Authors Cited 



903 



Demosthenes (continued) 

Against Stephanus (In Stephanum), 494, 

728. 
Against Timocrates (Adversus Timocra- 
tem), 92, 180, 181, 498, 500. 
Deuteronomy, see Bible. 
Dexippus, Publius Herennius (3<i century), 
Greek historian. 
Fragments of Scythica (edit. Dindorf, in 
Historici Graeci Minores, Leipzig, 
1870, vol.i), 634. 
Diaconus, Paulus, see Paulus Diaconus. 
Dicaearchus (fl. 300 b.c), Greek peripatetic 

philosopher, 188. 
Didymus (b. 63 b.c), Greek grammarian. 

On Homer^s Odyssey, 638. 
Digest, Justinian, see Corpus luris Civilis. 
Dio Cassius Cocceianus (b. 155), Greek 
historian, 65, 213, 316. 
Roman History (Historia Romana), 85, 

107, H3 J 7> *74> 2I 4> 5, 525, 538, 
546, 568, 638, 649, 650 (bis), 665, 732, 

74 2 > 752, 754 755, 774, 794 8 35- 
Selections on Embassies (Excerpta de Lega- 

tionibus), 114, 407, 444, 449. 
Selections on Virtues and Vices (Excerpta 

V alesiand), 407. 
Dio Chrysostom (b. c. 50), of Prusa, Greek 

rhetorician, 244, 526. 
Orations (Orationes, edit. Dindorf, Leip- 

zig> ^57)y IQ > 44> I0 7> I35> 188, 202, 

207, 214, 219, 241, 255, 256, 267, 300, 

33 2 > 353, 438, 45o, 455, 45 6 , 45, 4 6o > 
491, 505, 512, 514, 529, 539, 545, 547, 

563, 5 6 7> 573> 5 8 5> 62 i> 6 3 2 (bis), 634, 
690, 708 (bis), 718, 751, 764. 
Diodorus Siculus (ist century b.c), Greek 
historian. 
Historical Library (Bibliotheca Historica, 
edit. Vogel, Leipzig, 1888), 106, 110, 
112, 117, 121 (bis), 122 (quinquies), 
132, 134, i69(quater), 172, 201, 202,215, 
217, 221, 237, 244, 255, 268 (bis), 270, 
283, 292, 313 (quater), 314, 315, 321 
(bis), 360, 372, 374, 380 (bis), 393 (bis), 
398, 407, 417, 434, 446, 447, 451, 456 
(ter), 460, 484, 488 (ter), 490, 496, 501, 
505 (bis), 506, 511, 512, 521, 527, 528, 
53> 538, 543> 5 62 > 5 6 3> 5 68 (bis), 574 
(bis), 576 (bis), 580, 582, 585, 625, 633 
(bis), 634, 651 (ter), 657, 659, 665, 675 
(bis), 686, 702, 721, 723, 725, 730, 733 
(bis), 736 (bis), 737 (bis), 738 (bis), 739 
(ter), 741, 750, 753 (bis), 754, 766, 769, 



774> 775 (bis), 777, 77% 79 2 > 794> 79 6 > 

826 (bis), 827, 839, 862. 
Diogenes (404-323 b.c), of Sinope, cynic 

philosopher, 240. 
Diogenes Laertius (fl. 225), Greek bio- 

grapher. 
De Vita, Dogmatibus et Apophthegmati- 

bus Clarorum Philosophorum Libri X, 

80, 115, 187, 188, 271, 312, 353, 379 
(bis), 441, 503, 510, 661. 

Dionysius of Halicarnassus (c. 70-7 b.c), 
Greek historian and critic. 
On Isocrates, 221. 
Roman Antiquities (Antiquitates Romanae, 

81, 101 (ter), 108, 113 (bis), 125, 129 
(bis), 135, 169, 202, 213, 250 (ter), 287, 
2 95> 3^ 6 > 3 6 8, 37 2 , 4 J 9 ( ter ), 5 o6 > 5 11 , 
5 2 7> 54> 54 2 > 5 6 i (bis), 628, 634, 650, 
651, 669 (ter), 675, 677 (bis), 678 (bis), 
680 (octies), 681, 682 (ter), 685, 700, 
717, 726, 767, 798, 805, 811, 812, 821. 

Selections on Embassies, 449, 560, 636, 678, 
682. 
Diphilus (fl. 300 b.c), Attic comic poet, 

611. 
Doctors, commentators on the civil and 
canon law in general. 
On Code, 179, 192. 
On Decretals, 383. 
On Digest, 164, 179, 268, 333. 
Dominicus de Sancto Geminiano (fl. 1407), 
Italian canonist. 
On Sext (Commentaria in Libros Decreta- 
lium et Sextum), 627. 
Donatus, Aelius (b. c. 333), Latin gram- 
marian. 
On Terence (In Terentium Commentarium), 
238, 240 (bis), 297, 331, 364, 427, 440, 
446, 516, 561, 611, 649, 691, 701, 766, 
833, 834. 
Doneau, Hughes (Hugo Donellus, 1527- 
1591), French jurist. 
Commentaries (Commentaria de Iure 
Civili), 686. 
Douaren, see Duaren. 
Driedo, or Dridoens, John (c. 1480-1535), 
Belgian polemic theologian. 
De Libertate Christiana, 570. 
van den Driesche, Jan (1550-1616), Dutch 
Protestant exegete. 
On Acts (Annotationes in Novum Testa- 
mentum seu Praeteritorum Libri XII), 

587. 

Drusius, see van den Driesche. 



904 



Index of Authors Cited 



Duaren, Francois (c. 1 509-1 559), French 


Eugraphius (6th century), commentator on 


jurist. 


Terence. 


OnDigest, 371. 


On the Andria, 239. 


Dubraw, Johann (d. 1553), Bohemian 


On the Self-tormentor, 325. 


historian. 


Eumenius (fl. 290), Roman rhetorician. 


History of Bohemia (Historia Bohemiae), 


Panegyrics, 732, 775 (?). 




Eunapius (b. 347), Greek rhetorician, con- 


Dufresne, see de la Canaye, Philippe. 


tinuator of Dexippus. 


Dumoulin, Charles (Carolus Molinaeus, 


Selections on Embassies, 743. 


1 500-1566), French jurist. 


Euripides (480-406 b.c), Athenian tragic 


Additions to Alexander^s Consilia (Anno- 


poet, 371. 


tationes in Alexandri Tartagni Con- 


Alcestis, 265. 


silia), 179, 340. 


Andromache, 23 (bis), 236 (bis), 237, 238, 


Ad Consuetudines Parisienses, 113, 333, 


240, 270. 


426, 552. 


Antigone, 455. 


Duns Scotus, John (c. 1 265-1 308), English 


Children of Hercules (Heraclidae), 108, 


theologian, 183. 


254 444, 532 (bis), 533, 583, 647, 738 


On the Sentences of Peter Lombard (Opus 


(bis), 820, 821. 


Oxoniense), 39. 


Cyclops, 139. 


Durandus, William (c. 1 237-1 296), French 


Dictys, 270. 


canonist. 


Electra, 246, 250. 


Speculum Judiciale, 227. 


Erechtheus, 579. 




Fragments, 174, 274, 532, 583, 647. 




Hecuba, 611. 


Ebenesdras, see Aben-Ezra. 


Helena, 9, 39, 126, 267, 560. 


Ecclesiastes, see Bible. 


Hippolytus, 363, 583. 


Ecclesiasticus, see Bible. 


Hypsipyle, 452. 


Eginhard, see Einhard. 


/^,283,532,644. 


Einhard (c. 770-840), French historian. 


Iphigenia in Aulis, 476, 550, 561. 


Life of Charlemagne (Vita Caroli Magni), 


Iphigenia among the Taurians, 250, 


272. 


283. 


Embassies, Selections on, see Selections on 


Madness of Hercules (Hercules Furens), 


Embassies. 


281. 


Emilio, Paolo (d. 1529), Italian historian. 


Ow*/, 58, 250, 474. 


History of France (De Rebus Gestis 


Phoenician Maidens, 17, 23, 139, 561, 


Francorum), 318. 


563, 588. 


Ennius, Quintus (239-169 b.c), Roman 


Rhesus, 621, 675. 


poet, 9, 633, 822. 


Suppliants, 107, 108, 200, 392, 450 (bis), 


Ephesians, see Bible. 


451 (bis), 455, 461, 505 (bis), 560, 561, 


Epictetus (b. c. 50), Stoic philosopher. 


571, 582, 636, 730. 


Manual (Enchiridion), 144, 513. 


Trojan Women, 525, 678 (ter), 753. 


Epiphanius (c. 310-403), bishop of Salamis. 


Eusebius Pamphili (264-c. 349), bishop of 


Against Heresy (Panarion), 393, 520 (f). 


Caesarea, 483. 


On the Twelve Stones (De Duodecim 


Chronicle (Chronicon Bipartitum), 118. 


Gemmis), 47. 


Demonstrations (Demonstrationis Evan- 


Episcopus, Joannes, see Joannes Episcopus. 


gelicae Libri X), 88. 


Erasmus, Desiderius (1465-1536), Dutch 


Ecclesiastical History (Historia Ecclesias- 


scholar, 20. 


tica), 450, 460 (bis), 587. 


lise of Folly (Encomium Moriae), 618. 


On the Life of Constantine (Vita Con- 


Esdras, see Bible. 


stantini), 86, 87, 88, 520. 


Eubulus (fl. 375 b.c), Greek comic poet. 


Preparation (Praeparationis Evangelicae 


Fragments, 255 (bis). 


Libri XV), 70. 


Eucherius, St. (d. c. 449), bishop of Lyons, 


Eustathius (d. c. 1200), archbishop of Thes- 


*54> 155. 


salonica. 



Index of Authors Cited 



905 



Eustathius (continued) 

On the lliad (Commentarius ad Homeri 
Iliadem), 224, 246, 331, 345, 370, 380, 
606. 
On the Odyssey (Commentarius ad Odys- 
seam), 128, 246, 272, 380 (bis), 611. 
Eustratius (i2th century), commentator on 
Aristotle. 
On Nicomachean Ethics, 468, 618, 832. 
Euthymius Zigabenus (c. 1100), Byzantine 
monk. 
Commentarium in Quatuor Evangelia (?), 

96. 

Eutropius (4th century), Latin historian, 

460, 538. 
Breviarium Historiae Romanae ab Urbe 

Condita (Eton, 1793), 106, 118, 655, 

685,732,772,780. 
Evenus (fl. 450 b.c), Greek poet, 360. 
Everard,Nicholas(i46i-i532),Dutchjurist. 
Topica iuris sive loci argumentorum 

legales, 411, 412 (bis), 421 (bis). 
Excerpta de Legationibus, see Selections on 

Embassies. 
Excerpta Peiresciana, see Selections on 

Virtues and Vices. 
Excerpta de Virtutibus et Vitiis, see Selec- 

tions on Virtues and Vices. 
Exodus, see Bible. 
Ezekiel, see Bible. 

Faber, Antonius, see Favre, Antoine. 
Faber or Lefevre, Jean (d. 1340), French 
jurist. 
On Code, 428. 
Faber, Peter, see Faur, Pierre du. 
Faur, Pierre du (Petrus Faber, c. 1530-c. 
161 5), French classical scholar. 
Semestria, 22, 409, 703. 
Favorinus (2d century), Greek writer, 491. 
Favre, Antoine (Antonius Faber, 1557- 
1624), French jurist. 
Codex Sabaudicus, 252. 
Consilium pro Ducatu Montisferratensi, 

224. 
De la Jurisprudence de Savoie, 426. 
De Conjecturis Juris Civilis, 841. 
Felinus, see Sandeo, Felino Maria. 
Fenestella (ist century), Roman historian, 

129. 
Fernandez Messia, Tellus (i6th century), 
Spanish jurist. 
Taurinenses Quaestiones (In Primas 
XXXVIII Leges Tauri ?), 269. 



Ferus, Joannes, see Wild, Johann. 
Festus, Rufus (fl. 369), Latin historian. 
Abridged History of Rome (Breviarium 
Rerum Gestarum Populi Romani), 135. 
Festus, Sextus Pompeius (3d or ^th cen- 
tury), Latin grammarian. 
De Verborum Significatu, 132, 212, 309, 
314, 361, 367, 370, 378 (bis), 701, 703, 
714, 822. 
Feuds, On (De Feudis), 376, 404 (bis), 

581. 
Fice, John, see Fichard, Johann. 
Fichard, Johann (1512-1581), German 
jurist. 
Consilia Latina, 252. 
Firmanus, Joannes Bertachinus (d. 1497), 
Italian canonist. 
De Gabellis, Tributis et Vectigalibus, 201. 
Firmicus Maternus, Julius (4th century), 
Sicilian astrologer. 
Matheseos Libri, 212. 
Flaccus, Siculus (ist century), Roman land- 
surveyor. 
On the Condition of the Fields (De Con- 
dicionibus Agrorum), 207, 301, 66j. 
Flodoard (894-966), French historian. 

Historia Ecclesiae Remensis, 403. 
Florentinus (3d century), Roman jurist. 
Institutiones, 14, 34, 56, 57, 694, 705. 
Florus, L. Annaeus (2d century), Latin 
historian. 
Epitome Rerum Romanarum (Zweibrii- 
cken, 1783), 118, 130, 141, 159, 199, 
200, 213, 214, 221, 314, 406 (bis), 575, 

57%, 653, 735, 754, 773- 
Fortescue, Sir John (d. c. 1485), English 
lawyer. 
On the Praises of the Lazvs of England (De 
Laudibus Legum Angliae), 257. 
Fortunatianus, C. Chirius (fl. 450), Latin 
rhetorician. 
Art of Rhetoric (Ars Rhetorica), 240. 
De Quantitatum Comparatione, 251. 
Fortunius Garzia de Erzilla (fl. 15 14), 
Spanish jurist. 
Tractatus de Ultimo Fine Utriusque Juris 

Canonici et Civilis, 486. 
On Digest, 768. 
Franciscus Aretinus, see Accolti, Francesco. 
Franciscus a Ripa, Joannes (d. 1534), Italian 
jurist. 
On Digest, 684. 
Fraxinus Canaeus, see de la Canaye, 
Philippe. 



906 



Index of Authors Cited 



Fredegarius, surnamed Scholasticus (fl. c. 
660), French chronicler. 
Chronicon ab anno Christi usque ad annum 
642 libri V and its continuation, 118, 
531, 584, 822. 
Freher, Marquard (d. 1614), German his- 
torian. 
Epitome of Aimoin's History, 675. 
Freitas, Seraphinus de (d. 1622), Portu- 
guese canonist. 
On the Just Asiatic Empire 0/ the Portu- 
guese (De Iusto Imperio Lusitanorum 
Asiatico), 604. 
Fresne, du, see de la Canaye, Philippe. 
Frider Mindanus, Peter (d. 1616), German 
jurist. 
De Processibus, 135. 
Froissart, Jean (1338 - c. 1410), French 
chronicler. 
Chronicles (Chroniques), 263. 
Frontinus, Sextus Julius (c. 40-106), Roman 
military writer, 106, 66j. 
De Agrorum Qualitate, 216. 
Stratagems (Stratagematon Libri Tres), 
412, 618, 653, 746, 755, 784, 785, 836, 
858. 
Fulgosius, Raphael (1 367-1427), Italian 
jurist. 
On Code, 627. 
On Digest, 565. 
Fulvius Ursinus, see Ursinus, Fulvius. 



Gabrieli,Antonius(d.i555),Italiancanonist. 

Communes Conclusiones, 390. 
Gail, Andreas (1525-1587), German jurist. 
De Arrestis Imperii, 103, 375, 81 1. 
Observationes Practicae, 123, 135, 228, 

333, 375, 388, 807. 
De Pace Publica, 99, 261, 368, 481, 563, 

589, 627, 729, 742. 
De Pignorationibus, 628. 
Gaius (fl. 1 38-161), Roman jurist, 344. 
Daily Questions (Rerum Cottidiarum sive 

Aureorum Libri VII), 354, 666, 693. 
Ad Edictum Provinciale Libri XXX, 56, 

'I (bis), 331. 
Institutes (Institutionum Libri IV), 691 
(bis). 
Galatians, see Bible. 

Galen, Claudius (1 31-201), Greek medical 
writer and philosopher, 194, 360, 471, 
'>I,519>63I. 
De Semine, 306. 



On the Teachings of Hippocrates and 

Plato, 103, 510. 
On the Use of Parts, 53 (bis). 

Gallicanus, Vulcacius, see Vulcacius Galli- 
canus. 

Gallus, Aelius (ist century b.c), Roman 
jurist. 
Terms Which Apply to the Law (De Ver- 
borum Quae ad Ius Pertinent Significa- 
tione), 132,702,712,714. 

Gamaliel, Rabbi (d. 88), Pharisee and doc- 
tor of Hebrew Law, 588. 

Gellius, Aulus (2d century), Latin gram- 
marian. 
Attic Nights (Noctium Atticarum Libri 
XX, Leipzig, 1903), 9, 26, 51, 103, 174 
(bis), 187, 191, 214, 237, 251, 313, 360, 
367, 392, 423 (bis), 458, 469, 472, 481, 
484, 491, 503, 542, 559, 576, 588, 611, 
619, 624, 633, 652, 656, 676, 683 (bis), 
687, 701, 706, 751, 815, 832, 833 (ter), 
834, 853, 854, 855. _ 

Gemara, collection of discussions concern- 
ing the Mishna, 544. 

Genesis, see Bible. 

Gentili,Alberico(i552-i6o8),Italianjurist, 

On Embassies (De Legationibus Libri 

Tres, Hanau, 1594), 443- 
On the Law of War (De Iure Belli Libri 
Tres, Oxford, 1877), 22, 184, 185, 565, 
639 (bis), 830. 
Pleas of a Spanish Advocate (Hispanicae 
Advocationis Libri Duo, Amsterdam, 
1661), 213, 647, 667, 668. 
Gersonides (Levi Ben Gerson, 1 288-1 370), 
French rabbi. 
On Leviticus, 794. 
On Samuel, 129. 
Glossators, commentators on Roman law. 

On Digest, 414. 
Goeddaeus, Johannes (1555-1632), German 
jurist. 
Consilia Marpurgensia, 99. 
Goldast, Melchior (1 576-1635), Swiss his- 
torian and jurist. 
Collectio Constitutionum Imperialium, 213. 
Gomara, Francisco Lopez de (1510-c. 
1560), Spanish historian. 
Historia Generalis Indiae Occidentalis, 
274. 
Gomez, Antonio (fl. 1550), Spanish civilist. 
Variae Resolutiones Juris Civilis Com- 
munis et Regii, 338. 



Index of Authors Cited 



907 



Gomez, Luis (1494-1553), Spanish jurist. 

On Institutes, 180, 552. 
Gorionides, Josephus (Joseph Ben Gorion, 

9th century), Jewish historian, 458. 
Gorkum, Henry of, see Henry of Gorkum. 
Gratian (d. c. 1158), Italian canonist. 
Concordia Discordantium Canonum, cited 
as Decretum, 76, 94, 98, 145, 166 (bis), 
237 (bis), 238, 247, 270 (bis), 319, 320, 

353, 357, 365, 369, 37i, 493, 557, 5^5, 
568, 590, 591, 607, 611, 612, 617, 642 
(bis), 718, 719, 737. 
Gregoras, Nicephorus (c. 1295-c. 1360), 
Byzantine historian. 
Byzantina Historia, 79, 114, 118, 122, 
216, 226, 231, 279 (ter), 310, 373, 542, 
555, 563, 629, 668, 696 (bis), 738 (bis), 
784. 
Gregory I, Pope, surnamed the Great 
(c. 540-604). 
Letters (Epistolae), 83, 145, 520. 
Gregory IX, Pope (d. 1241), compiler of 

Decretals, 248. 
Gregory Nazianzen, St. (c. 328-c. 389), 
Greek Father of the Church. 
Against Julian (In Julianum Impera- 

torem), 146 (bis). 
Orations (Orationes), 235, 517. 
Gregory of Neocaesarea (c. 213-c. 270), sur- 
named Thaumaturgus, Greek bishop, 
768. 
Epistola Canonica, 778. 
Gregory of Nyssa, St. (c. 332-c. 398), Greek 
Father of the Church. 
Letter to Letoius (Epistola Canonica ad 
Letojum), 454. 
Gregory of Tours (544-594), French his- 
torian. 
History of the Franks (Historia Eccle- 
siastica Francorum Libri X), Iio, 175, 
183, 675 (bis), 785. 
Grotius, Hugo (1583-1645), Dutch jurist, 
author of the work here translated, in 
which there are over 330 cross refer- 
ences. 
Mare Liberum, 189, 199. 
Selection from Greek Tragedies and 
Comedies (Excerpta ex Tragoediis et 
Comoediis Graeca), 698. 
Gryphiander, Johann (d. 1652), German 
historian. 
Tractatus de Insulis ex Jurisconsultis, 
Politicis, Historicis et Philologis Col- 
lectus, 299. 



Guicciardini,Francesco(i482-i54o),Italian 
historian. 
History of Italy (La Historia d^Italia), 
261, 263, 289, 337, 413, 428, 441, 444, 

. 494, 576, 7%S> 8o 4, 8l 3, 8 22, 8 5- 
Guido Papae, see Pape, Guy de la. 
Guilleman, Franciscus (fl. 1610), Swiss 
historian. 
History of Switzerland (Helvetia seu de 
Rebus Helvetiorum), 154 (bis), 772. 
Gunther (fl. 1205), French Cistercian monk, 
reputed author of : 
Ligurinus, 113, 380, 388 (bis), 554, 574, 
5 8 5, 653, 785. 

Habakkuk, see Bible. 

Haraeus, Franciscus (d. 1632), Dutch 
historian. 
Annales Brabantiae Totiusque Belgii, 261, 
817. 
Harmenopulus, Constantine (1 320-1 380), 
Greek jurist. 
Promptuarium Juris Civilis t 211, 297, 
498. 
Harpocration, Valerius (2d century), Greek 
rhetorician. 
Lexicon in Decem Oratores, 626. 
Hebrews, see Bible. 
Hegesippus (d. c. 180), ecclesiastical his- 

torian, 458 (bis). 
Heige, Peter (1558 1599), German jurist. 
Quaestiones Illustres (Quaestiones Iuris 
Civilis et Saxonici ?), 426. 
Heliodorus (4th century), bishop of Tricca. 

Ethiopica, 175. 
Helmold (d. c. 1183), German historian. 
Chronica Slavorum et V enedorum, 279, 

749- 
See also Arnold of Liibeck. 
Heniochus, Greek poet of Middle Comedy, 

774- 
Henriquez, Henricus (15 36-1608), Portu- 

guese Jesuit and theologian. 
De Irregularitatibus in his Theologiae 

Moralis Summa, 178. 
Henry of Gorkum (c. 1 386-1431), Dutch 

theologian. 
De Bello lusto, 22. 
Henry of Segusio, Blessed, see Hostiensis. 
Heraclitus (c. 535-c 475 b.c), Greek philo- 

sopher of Ephesus, 42. 
Ad Herennium, a treatise on rhetoric as- 

cribed to Cicero or Q. Cornificius, 340, 

4 2 7, 455, 49i, 730, 73i. 



908 



Index of Authors Cited 



Hermogenianus (4th century), Roman 
jurist. 
Juris Epitomarum Libri VI, 57. 
Herodian (3d century), Greek historian. 
Histories (Ab Excessu Divi Marci Libri 
Octo, Leipzig, 1855), 19, 131, 148 (bis), 
184, 215, 224, 237, 314 (bis), 317 (bis), 

535, 57i, 7 2I > 728, 73o, 77 l - 
Herodotus (b. 484 b.c), Greek historian, 
611. 
Historiarum Libri IX, 47, 106, 107, 110, 
202 (bis), 262, 264, 279, 280, 283, 291, 
362, 446, 449, 451, 457, 532, 540, 543, 
561, 564, 622, 674, 678, 725, 729, 746, 
749, 772, 822, 857. 
Herrera y Tordesillas, Antonio de (1559- 
1625), Spanish historian. 
Historia General de los Hechos de los 
Castellanos en las Islas y Tierra Firme 
del Mar Oceano, 564, 630. 
Hesiod (fl. 800 b.c), Greek poet. 
Theogony (Theogonia), 110, 362. 
JForks and Days (Opera et Dies), 41, 42, 
524, 558, 716. 
Hierax, Greek philosopher. 

De Justitia, \6i. 
Hierocles (fl. 450), New Platonist. 

On the Golden Verses of Pythagoras (In 
Aureum Pythagoreorum Carmen Com- 
mentarius), 14, 277, 379, 462, 488. 
Hieronymus, see Jerome, St. 
Hieronymus de Monte, of Brescia. 

De Finibus Regundis, 835. 
Hilary of Arles, St. (c. 401-449), Gallic 

archbishop, 553. 
Hilary of Poitiers, St. (d. 368), Gallic 
bishop and exegete. 
On Matthetv (Commentarius in Evan- 
gelium S. Matthaei), 46. 
Hincmar of Reims (806-882), Frankish 
archbishop, 368. 
De Divortio Lotharii Regis et Tetbergae 
Reginae Epistola Praenetica ad Carolum 
Crassum, 364, 368 (bis), 481, 707. 
Life of Remigius (Vita Sancti Remigii), 
841. 
Hipparchus (^th century), a Pythagorean 
philosophcr. 
De Animi Tranquillitate, 243. 
Hirtius, Aulus (d. 43 b.c), Roman generaJ, 
continuator of Caesar. 
African War (De Bello Africo Liber), 649. 
Book VIII of Caesar's De Bello Gallico, 
858. 



Homer, Greek epic poet, 458. 

Iliad, 37, 79, 110, 117 (ter), 152, 219, 264 
(ter), 282, 344 (quater), 345, 378, 412 
(ter), 444, 452 (bis), 456, 468 (quater), 
610, 616, 627, 628, 648, 649 (bis), 674 
(quater), 675, 678, 702, 727 (bis), 742, 
759, 793, 832. 

Odyssey, 139, 171, 188, 219, 259, 265, 

273, 364, 394 453 (bis), 457, 475, S 

(bis), 591, 605, 630, 631, 638, 653, 678, 

702, 764, 765 (bis), 766 (bis). 
See also Batrachomyomachia. 
Honorius, Philippus (Giulio Belli, 17A 

century), Italian secretary of Cardinal 

Dietrichstein and editor of Thesaurus 

Politicus, 319. 
Horace (Quintus Horatius Flaccus, 65-8 

b.c), Latin poet, 491. 
Art of Poetry (De Arte Poetica), 10, 38, 

189, 409. 
Epistles (Epistulae), 17, 35, 525, 649. 
Epodes (Epodi), 197. 
Odes (Carmina), 107, 187, 191, 201, 210 

(bis), 282, 330, 331, 476, 617, 621, 734, 

842, 853 (bis). 
Satires (Sermones), II, 16, 35, 38, 42, 53, 

347, 355, 4 6 3 (ter), 494, 832. 
Hosea, see Bible. 
Hostiensis (Blessed Henry of Segusio, d. 

1271), cardinal-bishop of Ostia, Italian 

canonist. 
On Decretals, 288, 297, 325. 
Hotman, Francois (1 524-1590), French 

jurist. 
Anti-T ribonianus , 29. 
Quaestiones Illustres, 115, 290, 291. 

Iacchiades, or Joseph bar Chijah (4th cen- 
tury), Biblical exegete. 
On Daniel, 122, 272, 781. 
Iamblichus (d. c. 330), Chalcidian Neo- 
Platonic philosopher, 379. 
Letter to Dyscolion (Epistola ad Dyscolium), 

143. 
Life of Pythagoras (De Vita Pythagorae), 

592, 747- 
On the Mysteries of the Egyphans (De 

Mysteriis Liber), 514. 
Protrepticon ad Philosophiam, 80, 471, 
509, 620. 
Ibn' Ezra, see Aben-Ezra. 
Illescas, Gonzalo de (d. c. 1580), Spanish 
historian. 
Historia pontifcal y catholica, 294. 



Index of Authors Cited 



909 



Immanuel ben Salomo, Ziphronaeus (i3th 


Jamblichus, see Iamblichus. 


century), Italian rabbi. 


James, see Bible. 


On Proverbs (Comm. in Proverbia Salo- 


Jarchi, Solomon Ben Isaac (c. 1040-1105), 


monis), 467. 


French Jewish exegete. 


Imola, see Alexander of Imola. 


On Genesis, 613. 


Innocent IV, Pope (d. 1 254), Italian canonist. 


On Leviticus, 794. 


Apparatus seu Commentaria in Quinque 


Jason Mainus or de Maino (Giasone del 


Libros Decretalium, 98 (bis), 165 (bis), 


Maino, 1435-1519), Italian jurist. 


192, 252 (bis), 506, 627. 


On Code, 552. 


Institutes of Justinian, see Corpus Iuris 


Consilia, 228, 297, 385. 


Civilis. 


On Digest, 165, 323, 380, 384, 670, 


Instructiones Rei Maritimae, 688. 


684. 


Irenaeus, St. (c. 140-202), bishop of Lyons. 


On Institutes, 180. 


Against Heresies (Libri V adversus 


Javolenus, Priscus (b. c. 79), Roman jurist. 


Haereses, anonymous Latin transla- 


Epistularum Libri XIV, cited in Digest, 


tion of Greek original), 50 (bis), 72, 


8 S7 . 


110, 268, 462, 610, 694. 


Ex Posterioribus Labeonis Libri X, cited 


Isaeus (fl. 385 b.c), one of the ten Attic 


inDigest, 713. 


orators, 245. 


Jeremiah, see Bible. 


On the Inheritance of Pyrrhus (De Pyrrhi 


Jerome, St. (Sophronius Eusebius Hierony- 


Hereditate), 423. 


mus, c. 340-420), Latin Father of the 


De Nicostrati Hereditate, 277 (bis). 


Church, 552, 610. 


De Philoctemonis Hereditate, 272. 


Apology against Rufinus (Apologeticum ad- 


De Regno Admonitiones, 501. 


versus Rufinum), 819. 


Isaiah, see Bible. 


Chronicle of Eusebius (Chronicon Eusebii 


Isidore of Pelusium, St. (c. 370-c. 440), 


Caesariensis), 118. 


Alexandrian theologian. 


On Daniel, 521, 555. 


Letters (Epistolae), 127, 450 (bis), 765. 


On Ephesians, 587. 


Isidore of Seville, St. (c. 560-636), Spanish 


On Ezekiel, 356, 486, 618. 


historian and theologian. 


On Galatians, 520. 


Etymologies (Originum sive Etymolo- 


On Isaiah, 618. 


giarum Libri XX), 633, 636, 679, 701. 


On Jeremiah, 47. 


Gothic Chronicles (Historia de Regibus 


On Jonah, 460. 


Gothorum, W andalorum et Suevorum), 


Against Jovinianus (Adversus Jovinia- 


5*7, 753- 


num), 80, 240, 460, 476, 508, 642. 


De Summo Bono or Sententiarum Librilll, 


Letters (Epistolae), 14, 61, 89, 127, 235, 


364- 


4 8 3, 507, 539, 554 (bis), 588, 590, 615, 


Isocrates (436-338 b.c), Attic orator, 611, 


642 (bis), 694, 719, 765. 


728. 


On Leviticus (Homiliae Origenis), 320. 


Archidamus, 220, 395. 


On Luke, 785. 


Areopagiticus, 47. 


Life of Malchus (Vita Malchi, Monachi 


De Bigis, 254. 


Captivi), 182. 


Busiris, 542. 


On Nahum, 483. 


Against Callimachus, 225, 409. 


On the Parables, 522. 


Evagoras, 105, 380. 


Against Pelagius (Dialogi contra Pela- 


Praise of Helen, 451, 505. 


gianos), 72, 75. _ 


Letters to Philip, 770. 


On Perpetual Virginity, against Helvidius 


To Nicocles, 501. 


(De Perpetua Virginitate B. Mariae 


Panathenaic Oration, 130, 212, 215, 451, 


adversus Helvidium), 642. 


461, 506, 550, 774. 


Joannes Antiochenus, see John of Antioch. 


Panegyric, 134 (ter), 191, 395, 396, 451. 


Joannes de Carthagena, see Carthagena, 


On Peace, 135, 310, 812. 


Joannes de. 


Plataic Oration, 451, 722, 725, 762, 811. 


Joannes Chrysostomus, see Chrysostom, St. 


Israel ben Mose, Rabbi (i6th century), 481. 


John. 



9io 



Index oj Authors Cited 



Joannes Episcopus Euchaitensis (d. c. 1054), 

bishop of Euchaitae, poet. 
Versus lambici, 213. 
Joannes Leo, see Leo of Africa. 
Joannes de Lignano, see Legnano, Giovanni 

de. 
Joannes Magnus, see Magnus, Johan. 
Joannes Sarisberiensis, see John of Salis- 

burv. 
Job, see Bible. 

Johannes, see Joannes and John. 
John, see Bible. 
John of Antioch (7th century), Greek 

chronicler, quoted in the Excerpta 

Peiresciana, 156, 501, 590. 
John Chrysostom, St., see Chrysostom, St. 

John. 
John Leo, see Leo of Africa. 
John Magnus, see Magnus, Johan. 
John Major, see Major, John. 
John of Salisbury (c. 1115-1180), English 

philosopher and historian. 
Policraticus, 36, 183, 297, 653. 
Jonah, see Bible. 
Jordanes or Jornandes (6th century), Gothic 

historian. 
History of the Goths (De Origine Acti- 

busque Getarum), 233, 279, 287, 732. 
Josephus (37-95), Jewish historian, 65, 398, 

478,515,834. 
Antiquities of the Jews (Antiquitates 

Judaicae, Amsterdam, 1726), 19, 43, 

4 6 , 47, 55, 59, 79 ( bis ), 82 , 83 (ter), 115, 
118 (bis), 122 (quater), 126, 128, 132, 
133, 136, 140, 149, 151 (ter), 166, 172, 
187, 188, 213, 235 (bis), 245 (ter), 290 
(bis), 367, 399, 400, 438, 439, 456, 457 
(bis), 459, 473, 475, 477, 481, 482, 491, 

522, 538, 54, 54 2 , 544, 5 6 9, 577> 5 8 7, 
593, 624, 633, 635, 648, 649, 654, 661, 
663, 677, 690, 696, 700, 703, 717, 
721, 732 (bis), 734 (quater), 736, 747, 
816. 
Against Apion (Contra Apionem, Loeb 

*.), 2 35> 37*> 379> 39 8 > 59 G>is), 518, 
567,589,657,661. 
Jewish War (Bellum Judaicum, Amster- 
dam, 1726), 46, 56, 94, 213, 230 (bis), 

2o> 378, 45, 457, 45, 459 ( bis ), 55 2 , 
592, 645, 662 (bis), 729, 732, 776 (bis), 
815. 
Life (Josephi Vita, Loeb ed.), 83, 516. 
Josephus Gorionides, see Gorionides, Jo- 
sephus. 



Joshua, see Bible. 
Josippus, see Gorionides, Josephus. 
Judges, see Bible. 
Judith, see Bible. 

Julian the Apostate (Julianus Flavius 
Claudius, 331-363), Roman emperor. 
The Caesars (Caesares), 269. 
Letters (Epistolae), 310. 
Misopogon, 152, 312. 
Orations (Orationes), 39, 170, 2 12, 28 1, 
471, 490, 512, 536, 540 (bis), 705, 738. 
Julian, Salvius (b. c. 100), Roman jurist, 
cited in the Digest. 
Digestorum Libri XC, 387. 
Junius Brutus, see Brutus, Junius. 
Justin (Marcus Junianus Justinus, 2d cen- 
tury), Latin historian. 
Histories (Historiarum Philippicarum et 
Totius Mundi Originum et Terrae Situs 
ex Trogo Pompeio Excerptarum Libri 
XLIV), 79 (bis), 80, 105, 117, 118, 119 
(bis), 120, 121, 122, 130, 144, 151, 170, 
186, 187, 279, 280 (quater), 281, 283, 
290, 292, 394, 417, 419, 446, 472, 500, 
508, 510, 516, 521, 543, 548, 632 (bis), 
654, 656 (bis), 665, 669, 697, 699, 725, 

7 28 , 735> 74 8 > 759 77> 8 3> 8 49> 
857. 

Justin Martyr (c. 103-c. 165), Greek apo- 

logist of Christianity. 

Dialogue zvith Trypho (Dialogus cum Try- 

phone Judaeo), 43, 45, 47 (bis), 48, 481, 

719. 
First Apology (Apologia Prima pro Chris- 
tianis), 63, 69, 70, 73 (ter), 170, 481, 
518. 
Letter to Zena (Epistola ad Zenam et 

Serenum), 61. 
Second Apology (Apologia Secunda pro 

Christianis), 24, 509. 
See also Pseudo-Justin Martyr. 
Justinian I (483-565), Emperor of the East, 
ordered revision and compilation of 
Roman law, see Corpus Iuris Civilis. 
Justinian, Code of, see Corpus Iuris Civilis. 
Justinian, Digest of, see Corpus Iuris Civilis. 
Justinian, Edicts of, see Corpus Iuris Civilis. 
Justinian, Institutes of, see Corpus Iuris 

Civilis. 
Justinian, Novels of, see Corpus luris Civilis. 
Juvenal (Decimus Junius Juvenalis, c. 40-c. 
125), Latin satirist. 
Satires (Saturarum Libri Z 7 ), II, 41, 52, 
362, 398, 468, 722, 724, 742, 755. 



Index of Authors Cited 



911 



Kimchi, David (c. 1158-c. 1235), French 

Jewish rabbi. 
Roots {Liber Radicum s. Lexicon), 613. 
Kings, see Bible. 
Knichen, Andreas von (1560-1621), Ger- 

man jurist. 
De Jure Territorii, 224. 
De V estiturarum Pactionibus, 426. 
Kotzi, Moses de (Moses Mikkozzi, I3th 

century), Spanish rabbi. 
Collatio Legum Mosis et Romanorum, 763. 
On the Precepts of the Law (De Praeceptis 

Legis), 233, 251 (bis), 320, 349, 351 

(bis), 366 (bis), 372, 582 (quater), 695, 

719 (bis), 763 (ter), 768. 
Krantz, Albert (c. 1450-15 17), German 

historian. 
Danish History (Chronica Regnorum Aqui- 

lonarium Daniae, Sueciae et Norzvegiae), 

119, 124, 287 (bis). 
History of Saxony (Saxonia sive de 

Saxonicae Gentis Vetusta Origine), 131, 

154, 198, 204, 225, 319, 380, 440, 445, 

562, 633 (bis), 641, 668, 688. 
History of Sweden, see Danish History. 
Vandalica (Vandalia, sive Historia de 

Vandalorum Vera Origine), 123, 267 

(bis), 3io(bis),6o5, 633. 
Kromer, Martin (15 12-1589), Polish his- 

torian. 
History of Poland (De Origine et Rebus 

Gestis Polonorum Libri XXX), 123, 

185, 263, 267, 291, 387, 389, 438, 439, 

441, 447, 636, 655, 656, 659, 660, 684, 

823, 855. 



Lactantius, Lucius Caecilius Firmianus 
(d. c. 325), Latin apologist of Christia- 
nity, 610. 
On the Anger of God (De Ira Det), 363, 

462,478,492,510,513. 
Epitome of the Divine Institutes (Epitome 

Divinarum Institutionum), 357, 507. 
Divine Institutes (Divinarum Institu- 
tionum Libri VII), 24, 25, 26, 39, 41, 
59> 7h % 153, 165, 170, 194, 235, 347, 
451 (quater), 452, 454, 469, 471, 480, 
481, 495 (bis), 510, 521, 614, 621, 646, 
718,738,765,841. 
Laertius, Diogenes, see Diogenes Laertius. 
Lambert von Aschaffenburg (fl. 1077), 
German historian. 
Annales, 123, 158, 438, 592. 
1569-27 3 



Lampridius, Aelius (3d or 4th century), 

Latin biographer, 316. 
Alexander Severus, 23, 2X1, 299, 672, 680, 

751, 784. 
Elagabalus (Antoninus Heliogabalus), 318. 
Languet, Hubert, see Brutus, Junius. 
Laonicus Chalcocondylas, see Chalcocon- 

dylas, Laonicus. 
a Lapide, Cornelius (Cornelis Cornelissen 

van den Steen, 1567-1637), Flemish 

Jesuit and exegete. 
On Genesis (Commentarii in Sacram 

Scripturam), 66 7. 
Latinus Pacatus, see Pacatus, Latinus 

Drepanius. 
Laudensis, see Martinus de Caraziis. 
Law of the Bavarians (Lex Baioariorum), 

785. 
Lawof the Burgundians (Lex Burgundionum) , 

2 74> 2 75, 320. 
Law of France, 603 (bis), 668 (bis). 
Law ofthe Lombards (Leges Langobardorum), 

197, 200, 247 (ter), 279, 297, 432, 433, 

522, 590, 591, 667, 736. 
Law of Portugal (Leges Portugalliae), 668. 
Law, Salic (Lex Salica), 247. 
Law of Sicily (Leges Siculae), 623. 
Law of Spain (Leges Hispanicae), 687, 688, 

713. 
Law ofthe Visigoths (Lex Wisigothorum), 56, 
86 (bis), 180, 257 (quinquies), 259, 309, 
320, 325, 338, 339, 350, 359, 463, 481, 
524 (bis), 542, 591 (ter), 709 (bis), 

763. 
Laymann, Paul, author of Pacis Compositio 

inter Principes et Ordines Imperii 

Romani Catholicos atque Augustanae 

Confessioni Adhaerentes, 794, 799. 
Lecirier, Jean, French jurist of uncertain 

date. 
De Iure Primogeniturae, 291. 
Leges, see Law. 
Legnano, Giovanni da (d. 1383), Italian 

canonist. 
Tractatus de Bello, de Repraesaliis et de 

Duello, 22. 
Leo of Africa (Joannes Leo Africanus, fl. 

1526), Moorish geographer. 
Description of Africa (Africae Descriptio 

IX Libris Absoluta, Leyden, 1632), 

114, 118 (bis), 200, 257, 271, 310, 475, 

627. 
Leo I, Pope, called the Great (d. 461). 
Letters (Epistolae), 88 (bis), 707. 



912 



Index of Authors Cited 



Leo I, Flavius (d. 474), Emperor of Con- 
stantinople. 
rls (Nozrllae), 211, 450, 464. 
Lery, Jean de (1534-1611), French Protes- 
tant minister and traveller. 
Itinerary (Historia N avigationis in Brasi- 
liam quae et America dicitur), 243. 
Lessius, Leonard (1554-1623), Flemish 
Jesuit. 
De Justitia et Jure, 159, 175, 180 (bis), 
182 (bis), 194, 257, 260, 324, 359 (bis), 
426, 431 (ter), 433, 434 (ter), 435 
(quater), 437, 564, 580, 583, 618, 692, 

693, 7 l 9> 7*h 7^8- 

Leunclavius, Johann (15 3 3-1 593), German 
historian. 
Turkish History (Pandectae Historiae 
Turcicae), 118 (sexties), 280, 310, 321, 
438 (bis), 531, 555, 678, 687 (bis), 696 
(bis), 705, 719 (bis), 775, 821, 840, 
849. 

Leviticus, see Bible. 

Lex, see Lazv. 

Libanius (314-c. 390), Greek rhetorician, 

*99> 38o, 54 2 - 
Orations (Orationes), 72, 246, 418, 535, 

536,542,560,568. 
Liber de Laudibus Legum Angliae, see For- 

tescue, Sir John. 
Lignano, Joannes de, see Legnano, Giovanni 

da. 
Ligniacus (Caesar de Ligny, i6th century, 

French secretary to Cardinal de Per- 

ron ?), 428. 
Lindebrog, Fridericus (1 573-1648), Ger- 

man jurist and critic. 
On Ammianus Marcellinus, 637, 858. 
Littleton, Sir Thomas de (c. 1420-148 1), 

English jurist. 
On Tenures (De Tenuris Angliae), 257, 

339- 

Livy (Titus Livius, 59 B.c-17 a.d.), Latin 

historian, 397. 

Ab Urbe Condita, 19 (quater), 57, 73, 98, 

99 (bis), 100, 104 (ter), 105, 106 

(sexties), 108 (bis), 112, 114, 115 

(quater), 116 (bis), 117, 119, 126, 129 

(ter), 131 (ter), 132 (bis), 133, 134, 135 

(quatcr), 136 (bis), 142, 143, 144, 161, 

, 171 (ter), 172, 174, 185, 191, 195, 

203, 204 (bis), 213, 216, 221 (bis), 224, 

225, 226 (bis), 246, 248, 255, 258, 279 

(bis), 280 (bis), 282, 287 (bis), 313, 315 

<ter), 342, 359, 367, 370 (bis), 391, 392 



(bis), 393, 394> 395, 39 6 ( bis )> 397, 44> 
405, 406 (ter), 407 (bis), 408, 409, 410, 
415, 416 (bis), 417, 418, 419, 420, 421, 
428, 438, 439 (bis), 440 (bis), 441 (bis), 
442, 444 (ter), 445 (ter), 446 (quin- 
quies), 447 (bis), 452, 456 (ter), 473, 
503 (bis), 523 (ter), 525, 526, 527 (ter), 
528 (bis), 532, 533 (bis), 546, 547 
(bis), 548 (bis), 549, 550, 558, 561, 
562 (quater), 564 (bis), 571 (bis), 575 
(bis), 578 (bis), 580, 584, 585, 609, 
615, 616 (bis), 621, 624 (ter), 626, 
628, 633, 636 (bis), 637 (bis), 638 
(bis), 639, 644, 645 (quater), 646 (bis), 
647 (bis), 650 (bis), 651, 652, 654 (ter), 
655 (bis), 657, 658, 659, 660 (ter), 665 
(ter), 667, 669, 671, 675 (bis), 676 (bis), 
677 (octies), 678 (bis), 679 (quater), 
680 (sexties), 681 (sexties), 682 (sexties), 
683, 685 (bis), 688, 697, 699 (quater), 
703, 704, 718 (bis), 720 (bis), 721 (ter), 
724, 725, 728, 729 (quater), 730 (bis), 
735 (ter), 736 (bis), 740 (bis), 743 (bis), 
746 (quater), 748, 749, 752 (ter), 754 
(quater), 755 (ter), 758, 760, 771, 772 
(bis), 773, 774, 777 (bis), 779 (septies), 
780 (bis), 781 (ter), 783, 786 (bis), 787 
(quater), 788, 791, 792, 795 (ter), 797, 
798, 800, 805, 809, 810, 813, 816 (ter), 
819, 820 (bis), 822, 823, 825 (bis), 826 
(bis), 827 (ter), 828, 829, 834 (bis), 836 
(ter), 838 (bis), 842 (bis), 845, 848 (ter), 
849 (bis), 850 (bis), 857 (bis), 858 (ter), 
861, 862. 
Ab Urbe Condita Epitome Librorum, 118 
(ter), 216, 449. 

Loazes, Fernando (d. 1568), archbishop o 
Tarragona and Valencia, 264. 

Lombards, Lazv of the, see Lazv of the Lom- 
bards. 

Longinus, Dionysius Cassius (c. 213-273), 
Greek rhetorician. 
On the Sublime (De Sublimitate), 591. 

Lopez or Lupus, Joannes (d. 1496), Spanish 
theologian. 
De Bello et Bellatoribus, I2, 684. 

Lopez, Ludovicus (d. c. 1595), Spanish 
canonist. 
De Contractibus et N egotiationibus sive 
Instructorium Negotiantium, 178. 

Lorca, Petrus de (1554-1606), Spanish 
Cistercian monk and theologian. 
Commcntaria in Secundam Secundac I). 
Thomae, 99, 565 (bis), 569. 



Index of Authors Cited 



913 



Louis I, surnamed the Pious (778-840), 
Emperor of the West and King of 
France. 
Capitularies, 785 (bis). 

Lucan (Marcus Annaeus Lucanus, 39-65), 
Latirt epic poet. 
Pharsalia (De Bello Civili Libri Decem, 
ed. Hosius, Leipzig, 1905), 10, 79, 126, 
162, 170, 176, 191, 225, 241 (bis), 279, 
305, 394, 420, 450, 455, 547, 548, 573, 
574, 592, 646, 653, 676, 679, 686, 722, 

735, 74 1 * 74 2 ( bis )> 775> 805. 
Lucian (b.c. i2o),Greek writerof dialogues. 

Abdicatus, 271. 

Philopseudes, 605. 
Lucretius (Titus Lucretius Carus, c. 96-55 
b.c), Latin poet and philosopher. 

De Rerum Natura, 53, 453, 473, 614, 616. 
Luke, see Bible. 

Lupus, Joannes, see Lopez, Joannes. 
Lycophron (fl. 250 b.c), Greek poet. 

Alexandra, 212. 
Lycurgus (d. c. 323 b.c), Athenian orator. 

Against Leocrates, 532, 535. 
Lysias (c. 458-378 b.c), Athenian orator. 

Orations, zj6, 353, 450, 451, 505, 530. 



Maccabees, see Bible. 

Macrobius, Ambrosius Theodosius (4th 
century), Latin grammarian. 
On the Dream of Scipio (Commentarius ex 
Cicerone in Somnium Scipionis), 187, 
249, 458. 
Saturnalia (Saturnaliorum Conviviorum 
Libri VII), 92, 190, 225, 301, 660, 763. 
Maes,x\ndreas (15 15-1573), BelgianBiblical 
exegete. 
On Joshua (Josue Imperatoria Historia), 
618. 
Magnus, Johan (1488-1544), archbishop of 
Upsala. 
History of Sweden (Historia Gothorum 

Suevorumque), 124, 675, 687, 859. 
History of the Archbishops of JJpsala (His- 
toria Ecclesiae Metropolitanae Upsalen- 
sis), 212. 
Magnus, Olaus (c. 1490-1568), archbishop 
of Upsala. 
Historia de Gentibus Septentrionalibus , 

344- 
Maimonides (Moses ben Maimon, 1135- 
1204), Spanish Jewish exegete and 
philosopher, 128, 182, 366, 481, 544. 

3 



Canones Poenitentiales, 231, 719. 

On Deuteronomy, 45, 46, 465. 

On Gemara, 544. 

Guide ofthe Perplexed, 38, 351, 384, 467, 

477, 500, 502, 515, 539, 728. 
Halakot Touhal, 622. 
On Idolatry (De Idololatria), 46. 
On Leviticus, 243. 
To Misnajoth, 46. 
On theXIIIArticles (AdXIII Articulos), 

.477- 

Mainus, Jason, see Jason Mainus. 
Major, John (c. 1470-c. 1540), Scotch theo- 
logian. 
On the Sentences of Peter Lombard (In IV 
Libros Sententiarum Quaestiones), 157. 
Majorian (Julius Valerius Majorianus, d. 
461), Roman emperor of the West. 
Novels (Novellae), 317. 
Malchus (fl. 600), Byzantine historian, 484, 

530- 
Malderen, Johann van (1563 1633), Bel- 
gian theologian. 
Commentarium in Primam Secundae D. 
Thomae, 397. 
Mamertinus, Claudius (fl. 362), Latin 
panegyrist. 
Panegyric ofjulian (Panegyricus Iuliani), 
620. 
Manasses Ben-Joseph-Ben-Israel (c. 1604- 
1659), Spanish rabbi. 
Conciliator seu de Convenientia Locorum 
Sanctae Scripturae quae pugnare inter 
se videntur, 612. 
Mantica, Franciscus (d. 1614), Cardinal, 
Italian jurist. 
Lucubrationes Vaticanae seu de Tacitis et 
Ambiguis Conventionibus, 123. 
Manuel Comnenus (c. 11 20-1 180), Greek 

Emperor, 422. 
Manutius, Paulus (Paolo Manuzio, 15 12- 
1574), I ta han printer and critic. 
De Legibus Romanis, 797. 
Marcellinus, Ammianus, see Ammianus 

Marcellinus. 
Marcellus, Nonius, see Nonius Marcellus. 
Marcellus Ulpius (fl. 150), Roman jurist, 
cited in the Digest. 
Digestorum Libri XXXI, 712. 
Marcianus, Aelius (3d century), Roman 
jurist, cited in the Digest. 
Institutionum Libri XVI, 647, 691, 711. 
De Iudiciis Publicis Libri II, 727. 
Regularum Libri V t 322, 766. 

P 2 



9 i4 



Index of Authors Cited 



Marcus Aurelius, see Aurelius Antoninus, 

Marcus. 
Mariana, Juan (1536-1624), Spanish Jesuit 

and historian. 
History of Spain {Historiae de Rebus His- 

paniae Libri XXX), 114, 116, 119 

(quinquies), 120 (sexties), 122, 158, 

217, 227, 253, 287, 288, 289, 290, 291 

(bis), 292 (bis), 294 (septies), 337, 388, 

389 (ter), 404, 406, 438, 440, 441, 517 

(bis), 527, 531 (bis), 532, 533, 562 (bis), 

6 34> 6 35> 759> 7 6 9 (ter), 782 (bis), 799 

(bis), 804, 823, 826, 835, 844. 
Marius Victorinus, see Victorinus, Marius. 
Mark, see Bible. 
Marsa, Antonius, an unidentified writer on 

alluvial deposits, 299. 

- ilius of Padua (Marsiglio Menandrino, 

d. 1328), Italian jurist. 
Defensor Pacis, 659. 

tial (Marcus Valerius Martialis, 43-c. 

104), Latin writer of epigrams. 
Epigrams {Epigrammaton Libri XIV, 

Loebed.), 53, 145, 211,592. 
Martinus de Caraziis (Garatus) Laudensis 

(fl. 1440), Italian civilist, 22. 
De Bello, 98, 670, 834. 
Martyr, Justin, see Justin Martyr. 
Martyr, Peter, see Peter Martyr. 
Martyrology, Roman, 155, 594. 
Masius, see Maes, Andreas. 
Mastrillus, Garsias (d. 1620), Italian jurist. 

De Magistratibus, 228. 
Matesilano, Matteo (i5th century), Italian 

jurist. 
Notabilia, 180. 
Matthaei, Wilhelm (i5th century), Dutch 

ecclesiastic, 22. 
De Bello Iusto et Licito, 171, 770. 
Matthew, see Bible. 
Maximus of Turin, St. (c. 380-c. 465), 

Italian bishop and theologian. 
Homilies {Homiliae), 357. 
Maximus of Tyre (2d century), Greek 

philosopher. 
Dissertations {Dissertationes), 80, 468, 

474 4 8l > 577> 616. 
Mazzolini, Sylvester, see Sylvester Mazzo- 

lini. 
Medina, Bartholomcw (1527-1581), Spa- 

nish Dominican and theologian. 
On II. i {Commentaria in Primam Se- 

cundae of Thomas Aquinas), 433, 

558. 



Medina, Juan de (1490-1547), Spanish 
theologian. 
De Restitutione et Contractibus, 324, 327, 

333- 
Megasthenes (fl. 300 b.c), Greek historian, 

cited by Strabo, 459. 
Meibom, Heinrich (1555-1625), German 
historian. 
Opuscula Historica Rerum Germanicarum, 
290, 318, 319. 
Meichsner, Johann (i6th century), German 
jurist. 
Decisiones Camerales, 223. 
Mela, Pomponius (fl. 50), Latin geographer. 
De Situ Orbis Libri III, 156, 213, 344 
(bis). 
Melanchthon, Philipp (1497-1560), Ger- 
man reformer and scholar. 
Chronicles {Chronicon Carionis), 748. 
Menander (b. 342 b.c), Greek comic poet, 

165, 273 (bis), 530, 610. 
Menander Protector (6th century), Greek 
historian, 838. 
Fragments (edit. Dindorf, in Historici 
Graeci Minores, Leipzig, 1871, vol. ii), 
370, 387, 419, 438, 441, 501, 518 (bis), 
548, 622, 690, 698 (quater), 769, 809, 
817, 819. 
Menchaca, see Vazquez Menchaca, Fer- 

nando. 
Mendoza, Bernardino de (i6th century), 
Spanish diplomat and historian. 
Commentaries {Comentarios de lo Sucedi- 
do en los Paises Bajos desde 1567 d 1577), 
198. 
Menochio, Jacopo (15 3 2-1 607), Italian 
jurist. 
De Arbitrariis Judicum Quaestionibus et 

Causis Libri Duo, 743. 
On Code, 269. 
Consilia, 224, 552. 
De Praesumptionibus, 325. 
Meurs,Jande(i579-i639),Dutchhistorian. 
Danish History {Historia Danica), 605, 
668. 
Meyer, Jacob (1491-1552), Flemish his- 
torian. 
Annals of Belgium {Annales sive Historiae 
Rerum Belgicarum), 158-9. 
Micah, see Bible. 

Michael of Ephesus (nth century), Byzan- 
tine monk and philosopher. 
On Nicomachean Ethics, 36, 241, 244, 
354> 434> 4 6 5> 7* 6 > 794- 



Index of Aufhors Cited 



915 



Micosi, Samson, Jewish exegete of uncer- 


Navarra, Petrus de (fl. 1594), Spanish theo- 


tain date, 366. 


logian. 


Mindanus, Frederick, see Frider, Peter. 


De Ablatorum Restitutione in Foro Con- 


Modestinus, Herennius (fl. 240), Roman 


scientiae, 173, 178. 


jurist, cited in the Digest. 


Navarrus (Martin Azpilcueta, 1493-1586), 


Dijferentiarum Libri IX, 535. 


Spanish theologian. 


Excusationum Libri VI, 272. 


Consilia seu Responsa, 178 (bis), 324, 333, 


De Manumissionibus Liber Singularis, 771 . 


334 (bis), 34 J > 359 (bis), 366, 434, 578, 


Ad Quintum Mucium Libri XXXIX, see 


624. 


Pomponius, Ad Quintum Mucium. 


Nazarius (fl. 321), Latin panegyrist. 


De Poenis Libri IV, 683, 788. 


Panegyric of Constantine (Panegyricus 


Regularum Libri X, 529, 706, 712. 


Constantini), 593. 


Responsorum Libri XIX, 451. 


Nectarius (d. 397), Patriarch of Constanti- 


Molina, Luis (1535-1600), Spanish Jesuit 


nople. 


and theologian. 


Letter to Augustine, 484. 


De Justitia et Jure, 92, 98, 204, 205, 338, 


Nehemiah, see Bible. 


376, 397, 4 0I > 4 2 5> 506, 563, 565, 569, 


Neostadius, Cornelius (1 549-1606), Dutch 


575, 593, 600, 624, 66j, 720, 757, 761. 


jurist. 


Molina, Luis de (i6th century), Spanish 


De Pactis Antenuptialibus, 428. 


jurist. 


Nepos, Cornelius (c. 100-c. 24 b.c), Latin 


De Hispanorum Primogenitorum Origine et 


historian. 


Natura, 286, 287, 291 (bis). 


Exempla, 854. 


Molinaeus, Carolus, see Dumoulin, Charles. 


Liber de Excellentibus Ducibus Exterarum 


Monstrelet, Enguerrand de (c. 1 390-1453), 


Gentium : 


French chronicler. 


Agesilaus, 108 (bis), 752. 


Chroniques, 263. 


Epaminondas, 620. 


Monte, Hieronymus de, see Hieronymus de 


Hannibal, 112. 


Monte. 


On the Kings (De Regibus), 108. 


Montferrat, Guillaume de (i5th century), 


Pelopidas, 438, 444. 


French jurist. 


Themistocles, 57, 533. 


De Successionibus Regum et praecipue 


Thrasybulus, 225. 


Galliae, 285. 


Timotheus, 212. 


Moschion, Greek tragic poet of uncertain 


Neratius Priscus (2d century), Roman 


date, 452, 458. 


jurist, 339. 


Mouliard, Jean de (i7th century), French 


Membranarum Libri VII, 210. 


historian, continuator of De Serres. 


Neubrigensis, see William of Newburgh. 


Supplement, 444, 448. 


Nicephorus Gregoras, see Gregoras Nice- 


Musaeus (6th century), Greek grammarian 


phorus. 


and epic poet, 238. 


Nicetas Acominatus (d. 12 16) of Chonae, 


Musonius Rufus, Gaius (fl. 70), Stoic philo- 


Byzantine historian. 


sopher, cited in Stobaeus, 468, 481, 


History of the Greek Emperors from 1117 


588, 643, 775. 


to 1203, 166; also: 


Mysinger a Frundeck, Joachim (15 14-1588), 


Alexis, 221, 364, 380, 460, 588, 589, 


Brunswick chancelor. 


653, 698, 753. 


Centuriae Observationum Cameralium, 


Andronicus, 26J, 525, 753. 


380. 


Isaac Angelus, 12, 198, 254, 403, 484, 


Consiliorum Decades, 428. 


743,766. 




Joannes Comnenus, 280, 484. 




Manuel Comnenus, 118, 280, 282, 287, 


Naevius, Gnaeus (c. 270-c. 199 b.c), Latin 


432, 633 (bis), 654, 703, 784. 


epic and dramatic poet, 673. 


Urbs Capta, 724, 734. 


Natta, Marco Antonio (i6th century), 


Nicholas of Damascus (b. 74 b.c), Greek 


Italian jurist. 


historian. 


Consilia, 137, 252 (bis), 264. 


Fragments (edit. Dindorf, in Historici 



916 



Index of Authors Cited 



Nicholas of Damascus (continued) 

Graeci Minores, Leipzig, 1870, vol. i), 
259,283,287,448,474-5,499,514,751. 

Nicolaus Alemannus, see Alemanni, Niccolo. 

Nonius Marcellus (^th century), Latin 
grammarian. 
De Compendiosa Doctrina, 19, 74 (bis), 
438. 

Nonnus (5th century), Greek poet of Egypt. 
Dionysiaca, 212. 

Numbers, see Bible. 

Oderborn, Paul (fl. 1585), German Lu- 
theran minister. 
Life of Basilides (Vita Ioannis Basilidis), 
633. 
Olaus Magnus, see Magnus, Olaus. 
Oldendorp, Johann (c. 1480-1567), German 
jurist. 
Consilia Marpurgensia, 224, 228. 
Oldradus de Ponte (d. 1335), Italian civilist. 
Consilia, 397, 851. 
On Decretals, 261. 
Olympiodorus (5th century), Greek his- 

torian of Egypt, 458. 
Onesander (ist century), Greek philosopher. 

Strategicus, 745. 

Onkelos, Chaldean writer of uncertain date, 

author of a pdraphrase of the Penta- 

teuch, 613 ; see also Targum, Chaldean. 

Opilius, Aurelius (ist century b.c), Latin 

philosopher. 

Musae (cited by Aulus Gellius), 833 (bis). 

Oppian (2d century), Greek poet of Cilicia. 

On Fishing (Halieutica), 214, 270, 653, 

691. 
On Hunting (Cynegetica), 241, 270. 
Oppius, Caius (ist century b.c), reputed 
author of pseudo-Caesarian treatises, 
858. 
Optatus, St. (c. 315-c. 386), Bishop of 
Milevis, hence called Milevitanus. 
De Schismate Donatistarum, 1 5 1 , 45 1 , 455 . 
Origen (185-c. 253), Greek exegete and 
theologian of Egypt, 610. 
Against Celsus (Contra Celsum), 42, 47, 

81, 187,379,480,519,594. 
On Leviticus, 320. 

Matthew, 96. 
Philocalia, 61. 
Orosiu, Paulus (fl. 410), Latin historian and 
Christian apologist. 
Historiarum adversus Paganos Libri VII, 
202, 406, 599 (bis), 753. 



Osorius (Jeronimo Osorio, 1506-15 80), 

Portuguese bishop, 287, 517. 
Otto of Freising (c. 1111-1158), German 
bishop and historian, 653. See also 
Radevicus. 
Ovid (Publius Ovidius Naso, 43 b.c-c. 17 
a.d.), Latin poet. 
Art o/Love (Ars Amatoria), 54, 196, 297. 
fasti, 575, 716. 
Piscation (Halieutica), 52. 
Heroides, 282, 363 (bis), 428. 
Metamorphoses, 16, 196, 213, 245, 297, 

29 8 33i, 477, 525, 54> 583 (bis), 723. 
From the Pontus (Epistulae ex Ponto), 652, 

722. 
Remedyfor Love (Remedia Amoris), 371. 
Tristia, 723. 

Pacatus, Latinus Drepanius (fl. 389), Latin 
rhetorician. 
PanegyricofTheodosius (Panegyricus Theo- 
dosii), 736, 784, 832, 858. 
Pacuvius, Marcus (c. 220-c. 130 b.c), Latin 
tragic poet. 
Periboea, 74. 
Pandects, see Corpus Iuris Civilis : Digest. 
Panormitanus (Niccolo Tedeschi, 1386- 
1445), Italian canonist and archbishop 
of Palermo, sometimes cited as Abbas. 
Consilia, 228. 

On Decretals (Lectura in Decretales), 98, 
165, 182, 192, 365, 380, 387, 402, 
457, 552, 627, 670, 835, 840. 
On Decretum, 481. 
DeHomicidiis, 182. 
Pape, Guy de la (c. 1400-c. 1475), French 

jurist, 628. 
Papinian (Aemilius Papinianus, d. 212), 
Roman jurist. 
Definitionum Libri II, 494. 
Quaestionum Libri XXXVII, 240, 272, 

323- 
Responsorum Libri XIX, 212. 
Papinius, Statius, see Statius. 
Paralipomenon, see Bible. 
Pareus, David (1 548-1622), German re- 
formed theologian. 
On Romans (In Divinam ad Romanos S. 
Pauli Epistolam Commentarius), 146. 
Paruta, Paolo (1 540-1 598), Italian his- 
torian, 213. 
History of Venice (Historia Venetiana, 
Venice, 1605), 119, 198 (ter), 199 (bis), 
213, 230, 403, 418 (bis), 445, 447, 448 



Index of Authors Cited 



917 



Paruta, Paolo (continued) 

(bis), 562 (bis), 602, 685, 749, 780, 786, 
798,809,836,844,848.' 
On the War in Cyprus (Della Guerra di 
Cipro, Venice, 1605), 635, 703. 
Paschal, Carlo (1547-1625), Italian anti- 
quary. 
Legatus, 424. 
Paterculus, Caius Velleius (b. c. 20 b.c), 
Roman historian. 
Historiae Romanae ad M. Minucium Con- 
sulem Libri Duo, 112, 211, 314, 406, 

438, 474> 475, 54 8 > 6 7 6 > 7*4> 7 8 4- 
Patricius, Lanicius. 

Confession, 694. 
Paul of Venice, see Sarpi, Paolo. 
Paul, St. (d. c. 66), Apostle of the Gentiles. 
Epistle to the Ephesians, 187. 
Epistleto Titus, 187. 
See also Bible : New Testament. 
Paul the Jurist (Julius Paulus, d. c. 235), 

Roman jurist cited in the Digest (q.v.). 
Ad Edictum Libri LXXVIII, 39, 307, 

308, 311 (ter), 325, 608, 660, 662, 671, 

717, 843. 
De lure Codicillorum Liber Singularis, 269. 
Ad Legem Iuliam et Papiam Libri X, 537. 
Pithanon Labeonis a Paulo Epitomatorum 

Libri VIII, 704, 709. 
Ad Plautum Libri XVIII, 470, 539, 544. 
De Portionibus quae Liberis Damnatorum 

conceduntur Liber Singularis, 272. 
Ouaestionum Libri XXVI, 323, 329 (bis), 

~ 344> 62 7- 

AdSabinum Libri XVI, 630, 666, 694, 702 

(bis), 706 (bis), 708, 710, 713, 833, 836. 
Sententiarum Libri V , 97, 175 (bis), 247, 
331 (bis), 457, 524, 591, 671, 724. 
Paulinus, St. (c. 353-431), Bishop of Nola. 

Letters, 765. 
Paulinus of Gotha (Laurentius Paulinas, 
1 565-1646), Archbishop of Upsala, 647. 
Paulus Diaconus (Paul Warnefrid, c. 720- 
c. 798), Lombard historian. 
History ofthe Lombards (De Gestis Lango- 
bardarum), 1 14, 280, 304, 368, 564 (ter), 
654,694, 821. 
Paulus, see Paul. 

Paulus, Aemilius, see Emilio, Paolo. 

Pausanias (fl. 175), Greek geographer. 

Description ofGreece (Periegesis Graeciae), 

106, 107, 108, 202, 273, 279, 283, 290, 

292, 313, 448, 451, 456, 527, 528, 531, 

549> 5 6 7> 6 53> 6 59> 66o > 793> 815, 820. 



Pedius, Sextus (2d century), Roman jurist, 

cited by Ulpian, 418. 
Peiresc, Nicholas Claude Fabri de (1580- 
1637), French patron of learning, 156, 
283 ; see also Selections on Virtues and 
Vices. 
Peregrinus, Marcus Antonius (d. 1616), 
Italian jurist. 
De Juribus et Privilegiis Fisci, 201, 228, 
285 (bis). 
Pesichta, a Talmudic treatise, 235. 
Peter of Blois (d. 1200), French theologian. 
On Friendship and on the Love of God and 
Neighbor (De Amicitia Christiana et 
Caritate Dei et Proximi), 25, 94, 177, 
467, 617. 
Letters (Epistolae), 183. 
Peter, see Bible. 

Peter Martyr (Pietro Vermigli, 1 500-1 562), 
Italian Protestant theologian. 
On Judges (Comment. in Librum Iudicum), 
146. 
Petra, Petrus Antonius de (fl. 1600), Italian 
jurist. 
Tractatus de Potestate Principis, 778. 
Petronius, Gaius (d. 66), Latin satirist. 

Satires (Satyricon), 297, 454, 552. 
Petrus de Navarra, see Navarra, Petrus de. 
Petrus, see also Peter. 

Philargyrius Iunius, an early Vergilian com- 
mentator. 
On VergiVs Georgics, 126. 
Philippians, see Bible. 
Philo Byblius or Herennius Byblius (2d 
century), Roman grammarian. 
History of Sanchoniathon, 117. 
Philo Judaeus (b. c. 25 b.c), Greek philo- 
sopher, 450. 
On Abraham (De Abrahamo), 510, 522, 

544- . r 

On the Cherubim (De Cherubim), 618. 
On Circumcision (De Circumcisione), 47. 
De Constitutione sive Creatione Principum, 

509, 728, 734, 746, 861. 
On the Contemplative Life (De Vita Con- 

templativa), 79, 745. 
On the Creation of the World (De Opifcio 

Mundi), 187, 188. 
On Courage (De Fortitudine), 509. 
On Curses (De Exsecrationibus), 66\, 745. 
On the Embassy to Gaius (De Legatione 

ad Gaium), 155, 199 (bis), 213 (bis), 

224, 233, 273, 459, 485, 505, 511, 515 

(bis), 518, 552, 775, 776. 



9i8 



Index of Authors Cited 



Philo Judaeus (continued) 

On Humanity (De Humanitate), 543, 657, 

746. 
Against Flaccus (In Flaccum), 140, 213, 

452, 455 (bis), 457, 480, 525. 
On the Indestructibihty of the World (De 
rrnitate Mundt), 43, 311 (bis), 312, 

313. 
On Joseph (De Josepho), 451, 507, 617. 
On the Judge (De Judice), 37, 530. 
Leges Allegoriarum, 372. 
On the Life ofMoses (De Vita Mosis), 272, 

465,488,577,579,613,694. 
On Monarchy (De Monarchia), 478, 509, 

512. 
On Noatfs Planting (De Plantatione), 36, 

207, 212. 
On Nobility (De Nobilitate), 540, 568. 
On Priests (De Sacerdotibus), 235. 
On Sobriety (De Sobrietate), 35. 
On Special Laws (De Specialibus Legibus), 

33, 181, 239, 240 (bis), 243, 368, 369, 

370, 378, 422, 477, 499, 502, 503, 531, 

54, 5+2, 543, 727, 734, 7^3, 7^4- 
On the Ten Commandments (De Decalogo), 

II, 14, 43, 56, 80, 170, 378, 379, 495 

(bis), 515,548. 
That Every Virtuous Man is Free (Quod 

Omnis Probus Liber Sit), 38, 43, 70, 

591,620,690,691,761. 
That God is Immutable (Quod Deus Sit 

Immutabilis), 311. 
On Those Who Offer Sacrifices (De Sacrifi- 

cantibus),\~j%, 518. 
Philostratus, Flavius (b. c. 170), Greek 

sophist. 
Life of Apollonius ofTyana, 72, 105 (bis), 

126 (bis), 191 (bis), 215, 233, 270 (bis), 

298 (ter), 370, 398, 567, 569, 587, 753, 

803. 
Lives ofthe Sophists, 299, 444, 585, 728. 
Photius (c. 820-c. 891), Greek scholar, 

patriarch of Constantinople. 
Lexicon, 514. 

Library (Bibliotheca), 123, 349, 361, 5 1 4. 
Nomocanon, 484. 
Piccolomini,Alessandro(i 508-1 578), Italian 

philosopher. 
Philosophia Civilis, 565. 
Pigres, Greek poet of Halicarnassus, reputed 

author of Batrachomyomachia, q.v. 
Pindar (b. 522 b.c), Greek lyric poet. 

Isthmaean Hymns, 605. 
Pirke Abothy a Talmudic treatise, 141, 558. 



Pisander (b. c. 650 b.c), Greek epic poet, 

611. 
Pisci, Franciscus (Fridericus Piscina ?), 
jurist of uncertain date. 

De Statu Excellentium Feminarum (Dis- 

putatio an Statuta Foeminarum Ex- 

clusiva porrigantur ad Bona Forensia ?), 

269. 

Pius, Antoninus (86-161), Roman emperor, 

cited in Digest, 223. 
Plato (428-347 b.c), Athenian philosopher, 
162, 483, 509, 634. 

Alcibiades, 171. 

Apology (Apologia), 138, 587. 

Cratylus, 312. 

Critias, 313. 

Crito, 481. 

Euthyphro, 462. 

Gorgias, 16 (bis), 467 (bis), 468, 469. 

Laws (De Legibus), 14, 58, 97, 124, 143, 
171, 180, 194, 244, 275, 277, 298, 348, 
449, 466 (bis), 470, 512, 514, 521, 542, 
582,585,664,717,774. 

Protagoras, 514, 717. 

Republic (De Republica), 16, 225, 330, 
475, 521, 550, 600, 610 (ter), 614, 617 
(bis), 618, 696, 747. 

Sophist, 664. (quater). 
Plautus (Titus Maccius Plautus, c. 254- 
184 b.c), Roman comic poet. 

Amphitruo, 258, 636, 659 (bis). 

Asinaria, 358. 

The Two Bacchises (Bacchides), 585, 
676. 

Captives (Captivi), 139, 676. 

Casina, 247, 255. 

Mercator, 236. 

The Persian (Persa), 813. 

Poenulus, 246, 630. 

Rudens, 1 64, 375. 

Trinummus, 298, 470, 655. 

Truculentus, 816. 
Pliny the Elder (Gaius Plinius Secundus, 
23-79), Roman naturalist. 

Natural History (Historia Naturalis y 
Leyden, 1669), 42 (bis), 56, 59, 80, 
106 (ter), 115, 129, 188, 189, 200, 211 
(ter), 214 (bis), 215, 217, 241, 256, 270, 
295 (sexties), 301, 313, 344, 345, 351 
(ter), 352, 353, 358 (bis), 394, 422, 452 
(ter), 453 (bis), 458, 472, 475, 499, 506, 
576, 577, 608, 636 (bis), 637, 652, 659, 
675, 676, 685, 693, 734, 751 (ter), 752, 
785, 824, 858, 859. 



Index of Authors Cited 



919 



Pliny the Younger (Gaius Plinius Caecilius 


On Monarchy (De Unius in Republica 


Secundus, 62-c. 114). 


Dominatione), 122, 125. 


Letters (Epistulae, Loeb), 134, 251 (bis), 


Narrationes Amatoriae, 528. 


269 (ter), 301, 388, 500, 518, 558, 576, 


On Noble Traits of Women (Mulierum 


589, 616, 643, 655, 763, 764, 767, 775 


Virtutes), 458, 651. 


(bis), 776 (quinquies), 805. 


Parallel Lives (Vitae Parallelae) : 


Panegyric (Panegyricus, London, 17 16), 


Aemilius Paulus, 439, 676, 732. 


36 (bis), 121, 148, 207. 


Agesilaus, 17, 197, 198, 314, 321, 615, 


Plotinus (205-270), Greek philosopher, 458. 


616, 619, 625, 674, 752, 755, 823, 


Plutarch (c. 50-c. 120), Greek philosopher 


848. 


and biographer, 356, 508, 834. 


^,152,156,733,783. 


Amatorius, 512. 


Alexander, 45, 79, 412, 535, 621, 665 


De Animae Procreatione, 311. 


(bis), 675, 686, 697, 756, 761, 774, 


Apothegms (Apophthegmata Laconica), 18, 


840. 


197 (bis), 335, 606, 761, 787, 789. 


Antony, 456, 547, 564. 


Apothegms (Regum et Imperatorum Apo- 


Aratus, 135, 468, 472, 473, 736. 


phthegmata), 10 (bis), 125, 516, 536, 


Aristides, 620, 674. 


685, 773, 779- 


Artaxerxes, 112, 290. 


On the Bravery of Alexander, see On the 


Brutus, 162, 459, 740, 787. 


Fortune of Alexander. 


Caesar, 10, 474, 752. 


Against Colotes (Adversus Colotem), 509. 


Camillus, 19, 527, 571, 576, 735. 


Conjugal Precepts (Conjugalia Praecepta), 


Cato the Elder, 41, 162, 384, 679, 763, 


306. 


768. 


Consolation (Consolatio ad Uxorem Suam), 


Cato ofUtica, 738. 


12. 


Cimon, 197, 215 (bis), 436, 489, 526, 


Consolation(ConsolatioadApollonium),\$<). 


629,631. 


On the Contradictions of the Stoics (De 


Cleomenes, 108, 458. 


Repugnantiis Stoicis), 14, 79, 420, 610. 


Comparison of Cleomenes and the 


On the Delayed Vengeance of the Deity (De 


Gracchi, 576. 


His Qui Sero a Numine Puniuntur), 312, 


Comparison of Lycurgus and Numa, 


469, 470, 471, 516, 536, 541 (bis), 542, 


576. 


543,544-. 


Comparison of Lysander and Sulla, 156. 


On Education of Children (De Liheris 


Comparison of Pelopidas and Marcellus, 


Educandis), 620. 


737,738,788. 


On Exile (De Exilio), 462. 


Comparison of Philopoemen and Titus, 


On Fate (De Fato), 160. 


107, 476. 


On the Fortune of Alexander (De Alex- 


Comparison of Solon and Publicola, 160. 


andri Magni Fortuna aut Virtute), io, 


Comparison of Theseus and Romulus, 


232, 505 (bis), 6S7. 


495, 5o5- 


Greek Questions (Quaestiones Graecae), 


Comparison of Timoleon and Aemilius 


108, 298, 531, 564, 736, 737, 750, 769. 


Paulus, 781. 


On the Life and Poetry of Homer (De Vita 


Coriolanus, 129, 678. 


et Poesi Homeri), 266. 


Crassus, 170, 791. 


Lives ofTc.n Orators (De Vitis Decem Ora- 


Demetrius, 137, 198, 243, 395, 456, 


torum), 245, 460,543. 


589, 605, 685, 730, 744, 751, 759, 


On the Love of Brothers (De Fraterno 


769. 


Amore), 121, 290. 


Dion, 468, 741. 


On the Love of the Offspring (De Amore 


Eumenes, 380. 


Prolis), 269. 


Fabius Maximus, 407, 660. 


On the Malice of Herodotus (De Herodoti 


Flamininus, 161, 702, 749, 755, 772, 


Malignitate), 536. 


774, 783. 


On Matters of Common Knowledge (Ad- 


Galba, 388, 546. 


versus Stoicos de Communibus Notitiis), 


Gracchus, Tiberius, 157,406,590,660, 


188, 513. 


798. 



920 



Index of Authors Cited 



Plutarch (continued) 

Parallel Lives (continued) 
Lucullus, 211, 527, 680. 
Lycurgus, 161,224, 797. 
Lysander, 156, 197, 373, 606, 674. 
Marcellus, 108, 456, 606, 685. 
Marius, 10, 175,393,862. 
las, 172, 823. 
'*>35> 5ii> 562, 570-1. 
Otbo, 574, 692. 
Pelopidas, 177, 321, 444, 476. 
Pericles, 201, 203, 541. 
Philopoemen, 476, 606. 
Phocion, 580. 
Pompey, 10, 43, 213, 507, 562, 605, 

784, 794. 
Publicola, 160, 639, 654, 829. 
Pyrrhus, 17, 117, 122 (bis), 292, 456, 

549, 652. 
Romulus, 281, 473, 527, 669. 
Sertorius, 118. 
Solon, 16, 106, 164, 194, 255, 265, 271, 

488,521,562,605,797,819. 
Sulla, 141, 606, 659, 752, 813. 
Themistocles, 122 (bis), 152. 
Theseus, 108, 311, 451, 456, 717. 
77aw/w,557,659,74i. 
Parallels (Parallela Graeca et Romana), 

657. 

Political Precepts (Praecepta Gerendae 

Reipublicae), 476. 
Roman Questions (Quaestiones Romanae), 

239 37, 5i6, 773, 788, 789. 
On Superstition (De Superstitione), 509. 
Symposiacs (Conviviales Disputationes), 

196,412,429. 
To an Unlettered Prince (Ad Principem 

lneruditum), 717. 
Whether Water or Fire Is More Useful 
(Aquane an Ignis Sit Utilior), 199. 
Pollio, Trebellius (30I or 4th century), Latin 
biographer. 
Thirty Tyrants (Tyranni Triginta), 318. 
Pollux, Julius (c. 130 c. 188), Greek 
rhetorician. 
Onomasticon, 626. 
Polyaenus (fl. 160), Greek writer of Mace- 
donia. 
Strategemata, 410 (bis), 741, 747, 750 
(bis), 755- 
Polybius (b. c. 206 b.c), Greek historian, 

81, 397, 443,475- 
Histories (Historiae), 17, 41, 108, 112, 
125, 136, 149, 169, 215 (bis), 279, 370, 



395, 44 ( bis ), 47, 4 8 , 4 IQ ( ter ), 4 X 5, 
416 (bis), 436, 441, 494, 526 (bis), 528, 
546 (bis), 567, 605, 606, 621, 636, 651 
(bis), 654, 658, 671, 6yj, 683, 685, 690, 
702, 733, 734, 736, 745, 74 6 , 749, 75* 
754, 769, 772, 779, 805, 816, 822, 849, 
853. 
Selections on Embassies, 106, 133, 251 (bis), 

279 ( bis ), 374, 4 06 , 4 l6 , 445, 449, 53, 

546, 562 (ter), 622 (ter), 627 (bis), 659, 

660, 669, 675, 699, 702, 703 (ter), 751, 

754, 758, 772 (bis), 816, 819, 827 (bis), 

859. 
Pompeius Trogus, see Trogus, Pompeius. 
Pomponio Leto, see Pomponius Laetus. 
Pomponius, Sextus (2d century), Roman 

jurist, 666 (cited by Ulpian), 711 

(erroneously for Paulus), quoted in 

Digest. 
Enchiridii Liber Singularis, 129, 514, 66j, 

692. 
Ad Quintum Mucium Libri XXXIX, 438, 

446, 630, 658, 662, 666 (bis), 671 (bis), 

690, 701, 702, 703, 711, 714, 819. 
Ex Plauto Libri VII, 201, 210. 
Ad Sabinum Libri XXXVI, 190, 311, 

360,672,703,710. 
Pomponius Laetus, Julius (1425-1497), 

Italian antiquary. 
Compendium of Roman History from the 

Death of Gordian to Justinus III 

(Compendium Historiae Romanae ab 

Interitu Gordiani usque ad Justinum 

III), 460. 
Pomponius Mela, see Mela, Pomponius. 
Pontanus, Johan Isaac (c. 1570-1639), 

Danish historian. 
History of Denmark (Historia Danica), 

124,279,285,562,821,823. 
Discussiones Historicae (ed. 1637), 434, 

528. 
Porphyry (Porphyrius, 233-304), Neo- 

Platonic philosopher. 
On Abstaining from Animal Food (De 

Abstinentia), 12 (bis), 18, 42, 43, 53, 

79 (bis), 110, 187, 370, 477 (ter), 495, 

728, 747 (bis), 751, 794. 
Homeric Questions (Homeruae Quaes- 

tiones), 224. 
Life of Pythagoras (De Vita Pythagorae), 

187. 
Portuguese Law, see Law of Portugal. 
Posidonius (fl. 63 b.c), Stoic philosopher. 
Histories, 255. 



Index of Authors Cited 



921 



Possidius, St. (fl. 397-437), Bishop of Ca- 

lama in Numidia. 

Life of Augustine {Vita Sancti Augustini), 

277,841. 

Precepts of the Law, Precepts Bidding, Pre- 

cepts Forbidding, see de Kotzi, Moses. 

Prierio, Sylvester of, see Sylvester Mazzo- 

lini. 
Priscian (fl. 525), Latin grammarian. 

Institutiones Grammaticae, 683. 
Priscian (Theodorus Priscianus, 5th cen- 
tury), physician. 
Qynaecia, 194. 
Priscus (d. c. 471), Byzantine historian. 
Fragments, 765. 

Selections on Embassies (Excerpta de 
Legationibus), 318 (bis), 527, 653, 704, 
763. 
Probus, Marcus Valerius (fl. 100), Roman 

literary critic, cited for Nepos, 620. 
Proclus (412-485), Neo-Platonic philo- 
sopher, 616. 
On Plato's Republic, 745. 
On Hesiod's Works and Days, 525. 
Procopius (c. 495-c 565), Byzantine histo- 
rian, 838. 
On the Buildings ofjustinian (De Aedifi- 
ciis Imperatoris Justiniani Libri VI), 
118, 213, 262. 
Gothic War (De Bello Gothico Libri IV), 
19 (ter), 76 (bis), 114, 136, 169 (bis), 
189, 199, 213, 262, 286, 287, 320, 357, 
423 (bis), 432, 438, 441 (bis), 444, 459, 
488, 506, 520, 530, 531, 533, 548, 555, 
562 (bis), 570, 571, 572, 574, 602, 651, 
6 53, 657, 670, 684, 687, 704, 705 (bis), 
724, 726, 736, 738, 739, 741, 748, 750, 
753, 766, 776, 784, 787, 818, 837, 838, 
848, 853 (bis), 855. 
Persian War (De Bello Persico Libri II), 
122 (bis), 136 (bis), 198, 270, 276, 372, 
387, 396, 416, 460, 546, 555, 576, 578, 
657, 660, 738 (bis), 752, 814, 860. 
Secret History (Anecdota sive Historia Ar- 
cana), 215 (bis), 224, 317, 345, 353, 517. 
Vandalic War (De Bello Vandalico Libri 
II), 19 (bis), 114, 118 (bis), 279, 287, 
292, 409, 420, 445, 462, 473, 520, 570, 
571, 584, 599, 631, 656, 657, 672, 680, 
687, 698, 711 (bis), 724, 749, 752 (bis), 
784 (bis), 814. 
Proculus, Sempronius (ist century), Roman 
jurist, cited in Institutes and Digest, 
254, 306, 322. 



Epistolarum Libri, 131 (ter), 132, 714 
(bis), 823. 
Propertius, Sextus (c. 50-c. 16 b.c), Roman 
elegiac poet. 
Elegies (Elegiae), 593, 685, 723. 
Proverbs, see Bible. 

Prudentius Clemens, Aurelius (348-c. 405), 
Christian Latin poet. 
Against Symmachus (Contra Symmachum), 

250 (ter). 
Hymns (Cathemerinon), 451, 453. 
Psalms, see Bible. 
Pseudo-Justin Martyr. 

Responsa ad Orthodoxos (Responsiones ad 
Orthodoxos de Quibusdam Necessariis 
Quaestionibus, Migne ed.), 511, 519, 

544- 
Publilius Syrus (fl. 43 b.c), Roman writer 
of mimes. 
Sententiae, 74, 144, 467. 

Quintilian (Marcus Fabius Quintilianus, 
c. 35-c. 100), Roman rhetorician. 
Declamations, 152, 175, 190, 239, 251, 
265, 277-8, 361, 421, 422, 423, 425, 

4 2 7, 453, 454, 457, 474, 4 8 5, 4 8 7, 5 28 > 
589 (bis), 643, 716, 722, 759, 792 (bis), 

813. 

Institutes of Oratory (Institutio Oratoria, 
Loeb), 42-3, 43, 56, 159, 174 (bis), 270, 
421, 451, 484, 558, 566, 570, 610, 611 
(bis), 614, 615, 617, 618, 642, 684, 688, 

, 6 97, 7, 75, 7 l 7- 
Quintus Mucius, see Scaevola, Quintus 

Mucius. 

Radevicus (i2th century), continuator of 

Otto of Freising, 230, 405, 438. 
Regino of Priim (d. 915), German chroni- 

cler. 
Chronicon, 318, 650. 
Regius, Aegidius (Giles de Coninck, 15 71- 

1633), Belgian Jesuit theologian. 
De Moralitate, Natura et Effectibus 

Actuum Supernaturalium, 204, 325, 

563, 569, 5 8 7> 593, 629, 756, 759, 768, 

778,786,821. 
Reidanus,Everardus, see Van Reyd, Everard. 
Reinkingk, Theodor (d. 1664), German 

jurist. 
Tractatus de Regimine Seculari et Eccle- 

siastico (Marburg, 1641), 217, 224 (bis), 

228, 252, 291, 315, 386, 389, 635, 807, 

841. 



922 



Index of Authors Cited 



Revelation, see Bible. 

Rhedanus, Everardus, see Van Reyd, Eve- I 

rard. 
Ripa, Franciscus a, see Franciscus a Ripa. 
Rochus de Curte, see Curtius, Rochus. 
Roderick of Toledo (Rodrigo Ximenes, 
c. 1170-c. 1245), Spanish archbishop 
and historian. 
History of the Arabs (Historia Arabum), 

287. 
History 0/ Spain (Chronica Hispaniae), 
563. 
Roderick, see also Sanchez de Arevalo, 

Rodrigo. 
Romans, see Bible. 

Romanus, Ludovicus (1409-1439), Italian 
jurist. 
Consilia, 807. 
Rosate, Alberico de (d. 1354), Italian jurist. 
On Decretals, 264. 
De Statutis, 420. 
Rosella, Summa, see Trovamala, Baptista. 
Rosenthal, Henricus a (l7th century), Ger- 
man jurist. 
De Feudis or De Jure Feudorum (Synopsis 
Totius Iuris Feudalis ?), 301, 426. 
Rufinus (d. c. 1192), canonist of uncertain 
nationality. 
Summa in Gratiani Decretum, 87. 
Rufus, Latin author joined with Vegetius in 
Plantin's edition of 1607. 
Leges Militares, 140. 
Rugerius, Bonifacius (d. 1591), Italian 
jurist. 
Consilia, 264. 
Rupert (Rupertus Tuitiensis, d. 1135), 
abbot of Deritz, German Benedictine 
exegete, 618. 



Sabinus, Masurius (ist century), Roman 

jurist, cited by Tryphoninus in the 

Digest, 710. 
Salic Law, see Law, Salic. 
Saliceto, Bartholomaeus de (d. 141 2), Ita- 

lian jurist. 
On Code, 428, 627, 673, 712. 
Salisbury, John of, see John of Salisbury. 
Sallust (Gaius Sallustius Crispus, 86-34 

b.c), Roman historian. 
Catiline or Conspiracy of Catiline or 

Catilinarian War (Bellum Catilina- 

rium), 139, 210, 660, 770, 789, 799, 

850. 



Histories (Historiae), 126 ; also the follow- 
ing excerpts : 
Speech of Philip (Oratio Philippi in 

Senatu), 731. 
Oration of Macer (Oratio Macri Tr. 

Pl. ad Plebem), 172. 
Letter of Mithridates (Epistula Mithri- 
datis), 270, 556, 582. 
Jugurtha or Jugurthine War (Bellum 
Jugurthinum), 139, 140, 162, 213, 280, 
392, 394, 441, 442, 448, 473, 527, 697, 
738, 740, 744, 77 6, 848. 
On Public Administration (Ad Caesarem 
Senem de Re Publica Oratio), 731, 740, 
742,770,861. 
On Public Administration (Ad Caesarem 
Senem de Re Publica Epistula), 644. 
Salmasius, Claudius (Claude Saumaise, 
15 88-1 65 3), French scholar. 
On Solinus (Plinianae Exercitationes in 
C. J. Solini Polyhistorem), 301. 
Salomon, Rabbi, see Jarchi, Solomon Ben 

Isaac. 
Salvianus (d. c. 490), priest of Marseilles. 
Against Avarice (Adversus Avaritiam), 

119,767. 
On the Government of God (De Guberna- 
tioneDet),^, 519, 524, 525. 
Samuel, see Bible. 

Sanchez de Arevalo, Rodrigo (Rodericus 
Sanctius, 1404-1470), Spanish bishop 
and historian. 
History of Spain (Historia Hispanicd), 

5I7- 
Sanchez, Thomas (1 550-1 610), Spanish 

Jesuit and theologian. 
De Sancti Matrimonii Sacramento Dis- 

putationum Libri X, 341. 
Sanction des Eaux et Forets, 300. 
Sanctius, see Sanchez. 
Sandeo, Felino Maria, cited as Felinus 

(c. 1444-1503), Italian canonist. 
On Decretals, 213, 252, 333, 387, 835. 
Sarisberiensis, Joannes, see John of Salis- 

bury. 
Sarpi, Paolo (Father Paul or Paul of Venice, 

1 552-1623), Italian Servite and theo- 

logian. 
De Jure Asylorum Liber Singularis, 

532. 
Saturninus, Claudius (2d century), Roman 

jurist, cited in the Digest. 
De Poenis Paganorum Liber Singularis, 

501, 502. 



Index of Authors Cited 



923 



Saturninus, Venuleius (3d century), Roman 
jurist. 
Stipulationum Libri XIX, 659. 
Saumaise, Claude, see Salmasius, Claudius. 
Saxo Grammaticus (d. c. 1184), Danish 
historian. 
History of Denmark (De Gestis Danorum 
or Historia Danica), 86, 119, 280 (bis), 

304, 393>4 02 >554> 6 3i- 
Sayrus, Gregorius (1570-1602), English 
Benedictine and theologian. 
Clavis Regia Sacerdotum Casuum Con- 
scientiae sive Theologiae Moralis Tbe- 
sauri Locos Omnes Aperiens, 487. 
Scaevola, Quintus Cervidius (2d century), 
Roman jurist. 
Digestorum Libri XL, 423. 
Responsorum Libri VI, 308. 
Scaevola, Quintus Mucius (d. 82 b.c), 
Roman jurist. 
Cited by Cicero in his Topics, 701. 
Cited by Pomponius in the Digest, 529. 
Cited by Ulpian in the Digest, 56. 
Scafnaburgensis, see Lambert von Aschaf- 

fenburg. 
Scaliger, Joseph Juste (1 540-1 609), French 
critic and scholar. 
OnFestus, 822. 
von Schaffenburg, Lambert, see Lambert 

von Aschaffenburg. 
Scholiast on Apollonius Rhodius, 622. 
Scholiast on Aristophanes, 198, 380 (bis), 

602 (bis). 
Scholiast on Euripides, 281. 
Scholiast on Homer, 264. 
Scholiast on Horace, 35 (bis), 42, 189, 197, 

331, 347, 463, 491, 617, 621, 734. 
Scholiast on Juvenal, 742. 
Scholiast on Sophocles, 366. 
Scholiast on Thucydides, 631, 725, 833. 
Schutz, Caspar (fl. 1561), German historian. 
Prussian History (Historia Prussica), 604. 
Scriptores Historiae Augustae, see Capi- 
tolinus; Lampridius ; Pollio; Spartia- 
nus ; Vopiscus ; and Vulcacius. 
Segusio, Henricus de, see Hostiensis. 
Seissel, Claude de, see Seyssel, Claude de. 
Selden, John (15 84-1654), English lawyer. 

Mare Clausum (London, 1636), 189. 
Selections on Embassies (Excerpta de Lega- 
tionibus or Ursiniana), a collection of 
selections from various writers com- 
piled under the direction of Constan- 
tine VII Porphyrogenitus and first 



published by Fulvio Orsini (1582), 198, 
423, 669 ; see also names of authors ofthe 
selections. 

Selections on Virtues and Vices (Excerpta de 
Virtutibus et Vitiis or Peiresciana or 
Valesiana), a collection of selections 
from various writers compiled under 
the direction of Constantine VII 
Porphyrogenitus and first published 
from a manuscript of Peiresc by Henri 
de Valois (1634), see names of authors 
of the selections. 

Seneca, Lucius Annaeus (c. 3 B.c-65 a.d.), 
Roman philosopher, 244. 
Agamemnon, 635, 817. 
On Anger (Ad Novatum de Ira Libri III, 
Leipzig, 1905), 34,42 (bis), 170,446,463, 
466 (ter), 467 (bis), 468 (quater), 470 
(bis), 471, 477 (bis), 483 (bis), 485, 488 
(sexties), 503, 521, 540, 547, 548, 582, 

6 39> 7*7> 7*7, 734> 735 74 2 > 77h 788. 
On Benefits (De Beneficiis ad Aebutium 
Liberalem, Zweibriicken, 1782), 10, 
12, 36, 56, 73, 105, 142, 170, 171, 175, 
177 (ter), 186, 196, 199, 207 (ter), 219 
(bis), 233, 256 (bis), 257, 275, 300, 331, 
333, 351 (bis), 352, 361, 376, 398, 426 
(bis), 449, 451, 454, 483, 489 (bis), 490, 
53> 55> 506, 5H> 5 2 * (bis), 582 (bis), 
584, 589, 602, 615 (bis), 619, 623 (ter), 
664, 684, 717, 762, 763, 766 (ter), 767 
(bis), 778, 793, 796, 801 (quinquies), 
802 (ter), 824, 832 (bis). 

On Chance Remedies (Ad Gallionem de 
Remediis Fortuitorum, Leipzig, 1902), 
466. 

On Clemency (Ad Neronem de Clementia, 
Zweibrucken, 1782), 76, 152 (bis), 177, 
311, 475, 485, 488, 490, 491, 492, 501 
(bis), 547, 568 (bis), 569, 570, 575, 582, 
601, 717, 722, 730, 731, 739, 762, 763, 
764 (bis), 772, 828. 

On Consolation (Ad Helviam Matrem de 
Consolatione, Leipzig, 1905), 718. 

On the Happy Life (De Vita Beata ad 
Gallionem Fratrem, Leipzig, 1905), 97, 
251. 

Hercules Oetaeus, 368. 

Hercules Raging (Hercules Furens), 499, 
521, 548. 

Hippolytus (or Phaedra), 241, 556. 

On the Leisure of the Wise Man (De Otio 
aut Secessu Sapientis, Zweibriicken, 
1782), 486. 



924 



Index of Authors Cited 



Seneca, Lucius Annaeus (continued) 

Letters (Ad Lucilium Epistulae Morales, 
Loeb and Zweibriicken, 1782), 19, 34, 
42, 43, 51 (bis), 52 (bis), 56, 63 (ter), 
107, 129, 146, 170, 187, 188, 203, 228, 
251, 311 (bis), 312, 313, 331, 459, 488, 

495, 509, 5i3 (bis), 547, 5^8, 577, 59, 

645, 718, 762, 763 (bis), 764 (ter), 860. 
Mcdea, 140. 

cral Questions (Naturales Ouaestiones, 

Zweibriicken, 1782), 115, 188 (bis), 

203, 301, 313 (bis), 365, 511, 585 (bis), 

728. 
Octavia, 735. 
Oedipus, 656. 

Phoenician Women (Phoenissae), 749. 
On the Steadfastness of the Wise Man (De 

Constantia Sapientis, Leipzig, 1905), 

74 (ter), 201. 
Thyestes, 147. 
On Tranquillity (Ad Serenum de Tran- 

quillitate Animi, Leipzig, 1905), 766. 
Trojan Women (Troades), 645, 649, 716, 

737, 748, m- 

Seneca, Marcus (or Lucius) Annaeus (c. 60 
b.c.-c. 37 a.d.), Latin rhetorician, 
father of the preceding. 
Controversies (Controversiae, Vienna, 
1887), 58, 80, 157, 165, 193-4, 194, 
211, 231, 250, 252, 335, 367, 392, 42I, 
422, 425, 433, 450, 488, 489 (quater), 
503, 551, 588 (bis), 591, 643, 660, 691, 

697, 705, 793- 
Suasoriae (Vienna, 1887), 115, 191, 496, 

567. 
Septuagint, first Greek translation of He- 

brew Old Testament, 613 ; see also 

Bible : Old Testament. 
Serranus, Joannes, see de Serres, Jean. 
de Serres, Jean (c. 1 540-1 598), French 

historian. 
Inventaire General de VHistoire de France 

de Pharamond jusqu'd Charles VI, 261 

(bis), 285, 286, 292, 293 (bis), 319, 388, 

444, 44 8 , 739 ( bis ), 82 5- 
Servin, Louis (1 555-1626), French magis- 

trate, 604. 
Servius, Marcus Honoratus (4th century), 

Roman grammarian (In Vergilii Car- 

mina Commentarii, Leipzig, 1878- 

1902). 
On the Aeneid, 33 (bis), 59 (ter), 92, 101, 

117 (bis), 129, 166, 172, 190, 197, 201 
,202,215,247,253,261,277,279 



(ter), 281, 313, 337, 339, 392 (bis), 
393 (ter), 410, 438, 440, 454, 456 (bis), 
458, 464 (ter), 516, 531, 575, 605, 606, 
636 (ter), 637 (quater), 641 (bis), 645, 
660 (quater), 673, 675, 690 (bis), 692, 
701, 736, 742, 767, 775, 789, 822, 829, 
833 (bis), 836 (bis), 858. 
On the Eclogues, 117, 199, 217, 344, 660, 

765. 
On the Georgics, 126, 189-90, 199, 344, 
362, 452. 
Servius Sulpicius, see Sulpicius, Servius. 
Severus, Sulpicius (4th century), of Aqui- 
tania, ecclesiastical historian. 
Sacred History (Historia Sacra), 87, 89 
(quater), 520 (bis), 78 1. 
Sext, see Corpus Juris Canonici. 
Sextus Aurelius, see Aurelius Victor, Sex- 

tus. 
Sextus, Empiricus (fl. 200), Greek philo- 
sopher and physician. 
Against the Mathematicians (Adversus 

Mathematicos), 42. 
Pyrrhoneia, 233, 256. 
Seyssel, Claude de (c. 1450-15 20), French 
bishop and historian. 
De la Monarchie de France, 228. 
Siculus Flaccus, see Flaccus, Siculus. 
Sidonius Apollinaris, Gaius Sollius Modes- 
tus (c. 431-c 482), bishop of Clermont 
and poet. 
Letters (Epistolae), 387. 
Sigebert of Gembloux (c. 1035-1112), 
Belgian Benedictine and historian. 
Chronicon sive Chronographia, 290. 
Silius Italicus, Gaius Catius (c. 25-100), 
Roman epic poet. 
Punica, 374, 456, 509, 548, 560, 605, 606, 
653 (bis), 752, 792. 
Silvester, see Sylvester. 
Simeon Magister (Simeon Sethus, Ilth 
century), Greek writer. 
Syntagma de Cibariorum Facultate, 87. 
Simler, Josias (15 30-1 576), Swiss Protestant 
minister and historian. 
History of the Swiss Republic (De Re- 
publica Helvetiorum), 253, 533, 581, 
585, 672, 675, 685, 734, 753, 819. 
Simonides, early Greek poet cited by Plato 

and Plutarch, 330, 468. 
Simplicius (d. 549), peripatetic philosopher 
of Cilicia. 
On the Manual of Epictetus, 144, 234. 
Sirach, Son of, see Bible. 



Index of Authors Cited 



925 



Sirmond, Jacques (1559-1651), French 
Jesuit and antiquary. 
Appendix to Theodosian Code (Appendix 

Codicis Theodosiani), 438. 
Caroli Calvi et Successorum Aliquot 

Franciae Regum, 318. 
Councils of France (Concilia Antiqua 
Galliae), 364, 368. 
Sisenna, Lucius Cornelius (fl. c. 1 19-67 b.c), 
Roman annalist, cited by Servius, 202. 
Sixtinus, Regnerus (1577-1617), German 
jurist. 
De Regalibus, 301. 
Smith, Sir Thomas (15 12-1577), English 
statesman. 
English Commonzvealth (Latin translation 
called De Republica Anglorum), 263. 
Socinus, Bartholomaeus (1436-1507), Ita- 
lian jurist. 
Consilia, 223. 
Socrates (b. c. 379), ecclesiastical historian 
of Constantinople. 
Ecclesiastical History (Historia Ecclesias- 
tica), 520. 
Solinus, Gaius Julius (fl. 275), Roman 
geographer. 
De Memorabilibus Mundi or Polyhistor, 
112, 701. 
Solon (c. 638-c. 558 b.c), Athenian legis- 
lator and poet, 16, 256, 379, 394, 732. 
Fragments (of poems), 190. 
Song o/Songs, see Bible. 
Sopater (fl. 534), Greek sophist, 256, 488 
(ter), 491, 503, 589, 739. 
Controversies, 454, 4556. 
Scholia ad Hermogenis Status, 267. 
Sophocles (c. 495-405 b.c), Greek tragic 
poet. 
^>x, 139,450,453,455,458. 
Antigone, 107 (ter), 125, 140,450 (bis),453. 
Creusa (cited by Stobaeus), 610. 
Hippodamia, 362. 
Oedipus at Colonus (Oedipus Coloneus), 

366,379,531,534- 
Oedipus the King (Oedipus Rex), 6$6. 
Philoctetes, 611,621. 
Trachinian Women (Trachiniae), 56, 265. 
Soto, Domingo (1494-1560), Spanish Do- 

minican and theologian, 493. 
De Justitia et Jure Libri X, 173, 175, 

176 (bis), 178, 179, 180, 182, 193, 260, 

269, 324, 326, 363, 369, 373, 431 (bis), 

432, 433, 565, 579 0>is), 5 8 , 59 2 0>is), 
618,627,693. 



De Ratione Tegendi et Detegendi Secre- 
tum, 592. 
So-zomen (Sozomenos Hermias, b. c. 400), 
Greek ecclesiastical historian. 
Ecclesiastical History (Historia Ecclesias- 
tica), 109. 
Spanorchius, Horatius, author of : 

De Interregno Poloniae Anno 1587 Divi- 
natio (in Philippus Honorius, Thesaurus 
Politicus, 161 7), 319. 
Spartianus, Aelius (3d or 4th century), 
Latin biographer, 316. 
Caracalla (Antoninus Caracalld), 451. 
Hadrian (De Vita Hadriani), 85, 121, 

217, 299. 
Pescennius Niger, 561-2, 785. 
Septimius Severus (Severus), 299, 645, 680. 
Speculum, see Durandus, William. 
Speculum Saxonicum, 257, 267, 299, 308, 326. 
Statius, Caecilius, see Caecilius Statius. 
Statius, Publius Papinius (c. 6l-c. 96), 
Roman epic poet. 
Achilleid (Oxford), 593. 
Silvae (Oxford), 147, 735, 753, 833. 
Thebaid (Oxford), 438 (bis), 439, 450, 
45i, 452, 455, 457, 53i, 593, 636, 645, 
736. 
Stephen VI, Pope (d. 891), cited in the 

Concilia Galliae, 707. 
Stobaeus, Joannes (fl. 500), Greek antho- 
logist, 14, 17, 143, 165 (ter), 241, 255, 
270, 272, 332, 353, 362, 372, 379, 449, 
452, 455, 458, 462, 465, 468, 475, 476, 

477, 4 8 3, 4 88 , 49, 49 1 , 49 8 , 5 0I > 53, 
532, 53 8 , 5 8 5 (bis), 5 88 > 605, 610 (bis), 
611, 616, 643, 762, 774, 775, 820. 
Strabo (c. 60 b.c-c. 24 a.d.), Greek geo- 
grapher. 
Geography (Geographica, Leipzig, 1895), 
47, 79 (bis), 103 (bis), 105, 106 (quater), 
112, 116 (bis), 119 (bis), 121, 123, 125, 
132, 137, 198, 200 (bis), 201, 202, 204, 
214 (bis), 215 (bis), 217, 219, 237, 253 
(bis), 256, 273, 279 (bis), 287, 297, 302, 

3i3, 353, 434, 449, 459, 4 8 4, 499, 5">, 
511, 527, 542, 563 (ter), 564 (bis), 571, 

631, 653, 675, 70, 7" 736, 752, 769, 
775,780,819. 

Straccha, Benevenutus (fl. 1550), Italian 

jurist, 325. 
Suarez, Francisco (1548-1617), Spanish 

Jesuit and theologian. 
De Legibus ac Deo Legislatore, 159, 223, 

3 8 3, 565. 



926 



Index of Authors Cited 



Suarez, Rodericus (fl. 1494), Spanish jurist. 

De Usu Maris, 668. 
Suetonius Tranquillus, Gaius (b. c. 70), 
Roman historian. 

< of the Twelve Caesars (Vitae Duo- 
decim Caesarum, Loeb) : 

ustus, 97, 213 (bis), 357, 380, 575. 
Julius Caesar, 546, 678, 771, 772, 835. 
Caligula, 112,324. 
Claudius, 358. 
Domitian, 145. 

rro, 658. 
Tiberius, 376. 
Titus, 388. 
Grammarians (De Illustribus Grammaticis 
et de Claris Rhetoribus, Loeb), 255. 
Suidas (fl. 970), Greek lexicographer. 

Lc.xicon, 81, 149, 169, 737, 754, 784. 
Sulpicius Rufus, Servius (c. 106-43 b.c), 
Roman jurist, cited by Cicero, 701, 

Sylvester Mazzolini (also Mozolini and 

Prierias, 1460-1523), Italian Domini- 

can and theologian. 
Summa Syhestrina, Quae Summa Sum- 

marum merito nuncupatur : On the 

word bellum, 91, 98, 99, 165, 166, 171, 

172, 176, 179, 182, 268, 350, 402, 403, 

404, 552, 556, 585, 592, 594, 600, 607, 

609, 686, 689, 696, 719 (bis), 752, 758, 

760, 790, 791, 807. 

On the vvord commodatum, 426. 

On the word homicidium, 175, 178. 

On the word iuramentum, 365. 

On the word metus, 334. 

On the word Papa, 506. 

On the word repressalia, 628. 

On the word restitutio, 324, 334, 603. 

On the word sepultura, 457. 

On the word servitus, 768. 

On the word societas, 359. 

On the word vindicta, 467. 
Sylvius (Piccolomini), Aeneas (1405-1464), 

later Pope Pius II, Italian historian. 
History 0} the Council of Basel (Historia 

Concilii Basiliensis), 252. 
Symmachus, Quintus Aurelius (d. c. 402), 

Roman orator and statesman. 
Letters (Epistulae), 207, 367, 380, 387 

(bis), 492. 
Synesius of Cyrene (378-c. 430), bishop and 

neo-Platonist, 724. 
Letters (Epistolae), 148, 483. 
Synod of Seville, 486. 



Syrianus (d. c. 450), Greek philosopher. 
On Hermogenes (Scholia ad Hermogenis 
status), 267. 
Syring, Petrus (d. 1653), German philo- 
sopher. 
De Pace Religionis in Imperio Romano 
contra Franciscum Burckhardum, 386. 
Syrus, Publilius, see Publilius Syrus. 

Tacitus, Publius Cornelius (c. 55-after 117), 
Roman historian. 

Agricola (Loeb), 277, 279, 775, Jj6. 

Annals (Annales, Oxford), 47, 112, 115, 
118, 129 (bis), 139, 144, 187, 202, 221, 
235, 245, 299, 312, 318, 422, 440, 446, 
450, 451, 455, 463, 465, 470, 472, 497, 
508, 532 (ter), 548, 561, 575, 591 (bis), 
612, 622, 632, 636, 645, 648, 650 (bis), 
651, 652, 656, 658, 659, 660, 684, 687 
(bis), 691, 698, 722 (bis), 731, 736, 740, 
771,772,774,777,786,832. 

Germany (Oxford), 105, 112, 115, 126, 
128 (ter), 130, 217 (bis), 219, 237, 255, 
287, 300, 344, 393, 549, 632, 651, 744, 

765- 
Histories (Historiae, Oxford), 69, 74, 106, 

110, 126, 135 (ter), 142, 144, 151, 162, 

197, 198, 201, 312, 364, 388 (bis), 398, 

440, 452, 473, 511, 547 (bis), 550, 556, 

57*> 573, 575, 612 (bis), 632, 645, 650 

(bis), 654, 661 (ter), 686, 692 (bis), 738, 

77h 773, 775, 7*6, 832. 
On Orators (Dialogus de Oratoribus, 

Oxford), 476. 
Tacticus, Aelianus, see Aelianus Tacticus. 
Talmud, compilation of the Jewish Mishna 

and Gemara, 747. 
On the King, 46, 672, 686. 
On Marriage Deeds (Ketuboth), 482. 
On the Sanhedrin, 46. 
Tanchuma bar Alba, a rabbinical commen- 

tator, 587. 
Targum, Chaldean, paraphrase of the Old 

Testament, 399 ; see also Onkelos. 
Tartagni, Alessandro, see Alexander 01 

Imola. 
Tatian (b. c. 120), Syrian apologist. 

Oratio adversus Graecos (Migne), 84. 
Tatius, Achilles, see Achilles Tatius. 
Tedeschi, see Panormitanus. 
De Tenuris Angliae, see Littleton, Sir 

Thomas de. 
Terence (Publius Terentius Afer, c. 195- 

159 b.c), Latin comic poet. 



Index of Authors Cited 



927 



Terence {continued) 

Brothers {Adelphi), 74, 559, 611, 649, 

794- 
Andria, 568, 767. 
Eunuch, 297, 331, 446, 516, 560, 561, 630, 

701. 
Hecyra, 144, 440, 469. 
Phormio, j66 (bis). 
Self-Tormentor {Heauton Timorumenos) , 

104, 325. 
Tertullian (Quintus Septimius Florens 

Tertullianus, c. 160-c. 240), Latin 

Father of the Church, 610. 
Against the Nations {Ad Nationes), 518, 

592, 660. 
An Answer to thejews {Adversusjudaeos), 

10,25,47,517. 
Apology {Apologeticum), 84 (bis), 85 (bis), 

H4> 145, i53> 160, 371, 487, 518, 592, 

658 (bis), 697, 765. 
Exhortation to Chastity {De Exhortatione 

Castitatis), 82, 642. 
On Fastings {De Jejuniis), 338. 
The Flight in Persecution {De Fuga in 

Persecutione), 89. 
Prescription against Heretics {De Prae- 

scriptionibus adversus Haereticos), 43. 
On Idolatry {De Idololatria), 82 (ter), 83, 

87,89,588. _ 
Against Marcion {Adversus Marcionem), 

75, 77, 242, 268, 4 0I > 479> 512 (bis), 

541, 615 (bis), 642, 694. 
On Modesty {De Pudicitia), 49, 411, 617, 

701. 
On Monogamy {De Monogamia), JJ, 82, 

542. 
De Oratione, 464. 
On the Pallium {De Pallio), 313. 
On Patience {De Patientia), jj, 96, 479. 
On Penitence or Repentance {De Poeni- 

tentia), 143, 482. 
On the Resurrection of the Flesh {De 

Resurrectione- Carnis), 20, 311, 411, 

453>522,589. 
To Scapula {Ad Scapulam), 82, 145. 
Scorpiace {Adversus Gnosticos Scorpiace), 

518, 800. 
On the Soldier^s Chaplet {De Corona 

Militis), 38, 82 (bis), 83, 85, 563. 
On the Soul {De Anima), 25, 82, 187, 194, 

589. 
De Spectacuhs, 81-2. 
To His Wife {Ad JJxorem), 247, 497, 498, 

642. 
1569-27 3 



Tessaurus, Anthony, see Thesaurus, Caspar 

Antonius. 
Testament, New and Old, see Bible. 
Theano (fl. 540 b.c), Greek philosopher 
and wife of Pythagoras, 
Letters {Epistolae), 765. 
Themistius (c. 315-c. 390), Greek rhetori- 
cian. 
Orations {Orationes), 18, 213, 214, 492, 

570,591,728,729. 
On the Soul (in Paraphrases Aristotelis 
Librorum Quae Supersunt, Leipzig, 
1866), 459. 
Theocritus (fl. 270 b.c), Greek pastoral 
poet. 
Idyls (Loeb), 213 (bis). 
Theodoret (c. 393-c. 457), bishop of Cyrus, 
theologian and historian, 47. 
Ecclesiastical History {Historia Ecclesias- 

tica), 109, 145, 3 14. 
Graecarum Affectionum Curatio, 468. 
On Providence {De Divina Providentia), 
199. 
Theodoric the Great (c. 454-526), King of 
the Ostrogoths. 
Edict {Edictum Theodorici of 512, a code 
of criminal law), 91, 348, 405, 522 (bis), 
709. 
Theodosian Code {Codex Theodosianus), com- 
pilation of imperial constitutions or- 
dered by Theodosius II and published 
in 438, superseded by Code ofjustinian 
in Corpus Iuris Civilis, 28, j6, 249 
(ter), 248, 249, 252, 355, 438, 474. 
Theophanes, one of two Byzantine his- 
torians (d. 578 or c. 758-817), 215, 659. 
Theophilus (6th century), Roman jurist, 
one of the compilers of the Digest and 
Institutes of Justinian. 
Institutes {Paraphrasis Institutionum, a 
Greek version of Justinian's Institutes), 
107, 209 (bis), 531, 666, j66. 
Theophrastus (c. 374-287 b.c), Greek 
philosopher. 
On Laws, 142 (cited in Digest), 332. 
Theophylactus (fl. 1078), Greek exegete. 

On St. Matthew, 96. 
Thesaurus, Caspar Antonius (fl. 1626), 
Italian jurist. 
Thesaurus Quaestionum Forensium, 252. 
Thessalonians, see Bible. 
Thomas Aquinas, St. (1 227-1 274), Italian 
Dominican philosopher, theologian and 
doctor of the Church, 493. 



928 



Index of Authors Cited 



Thomas Aquinas, St. (continued) 

Summa Theologica (the second part of the 
second part is cited as Secunda Secun- 
dae), 39, 162, 166, 173, 193, 223, 257, 
268,299. 7, 350,365,369,373, 

376, 387, 397, +3i> 43i 433 (bis), 465, 
467, 470, 518, 556, 563, 600, 601, 607 
(ter), 611, 618 (bis), 624, 770, 821. 

Thomas Grammaticus (i6th century), 
Italian jurist. 
Decisiones Neapolitanae, 291, 670, 673. 

de Thou, Jacques Auguste (1553-1617), 
French historian. 
History of His Own Time (Historiae Sui 
Temporis), 158 (bis), 203, 216, 220, 
264, 287, 289, 419, 443, 533, 555, 603, 
605, 650, 667, 670, 702, 759, 817. 

Thuanus, Jacobus Augustus, see de Thou, 
Jacques Auguste. 

Thucydides (471-c 401 b.c), Greek his- 

torian. 

De Bello Peloponnesiaco Libri VIII, 9 

(bis), 17, 19, 59, 101, 104, 106, 113, 

115, 130 (bis), 134 (bis), 136, 142, 173, 

174 (bis), I9I, I92, 201, 213 (bis), 215, 

225, 249, 283, 316 (ter), 360, 394 (bis), 
395, 43, 45 (bis), 410, 411, 412, 415, 
416 (bis), 417, 440, 445 (ter), 466, 473, 
488, 496 (bis), 521, 526, 546 (quin- 
quies), 562 (quater), 571 (bis), 581 
(bis), 583, 584, 606, 631, 634 (bis), 637, 
646 (bis), 648, 649, 659, 678, 703, 718, 
722, 724, 727, 728 (bis), 730, 731, 736 
(bis), 739, 750 (bis), 752, 754, 759, 766, 
774, 77^ 786, 795, 810 (bis), 814, 817, 
822 (bis), 827, 835, 837, 853. 

Tiberius Decianus, see Decianus, Tiberius. 

Tibullus, Albius (c. 54-c 19 b.c), Roman 
elegiac poet. 
Carmina (Loeb), 79, 211. 

Timothy, see Bible. 

Tiraqueau, Andre (Andreas Tiraquellus, 
c 1480-1558), French jurist. 
De Legibus Connubialibus et de Jure 

tali, 414. 
De Jure Primogenitorum, 290, 291. 

Titus (d. c 371), bishop of Bostra in Arabia 
and exegete, 96. 

Titus, see Bible. 

Toledo, Francisco (15 32-1 596), Spanish 
Jesuit and theologian. 
Summa Casuum Conscientiae Absolutissima, 
373, 397, 618. 

Toledo, Roderick o(,see Roderick of Toledo. 



Toletus, Franciscus, see Toledo, Francisco. 
Torquemada, Juan de (1 388-1468), Spanish 

Dominican and canonist. 
On Decretals, 388. 
Toschi, Domenico, Cardinal (1535-1620), 

Italian jurist. 
Practicae Conclusiones Juris in Omni Foro 

Frequentiorum, 99, 131, 261, 285, 420, 

552,841. 
Tostado, Alonso (c 1400-145 5), Spanish 

exegete and bishop of Avila (hence 

called Abulensis), 618. 
OnMatthew, 355, 553. 
Trebatius (Caius Trebatius Testa, ist 

century b.c), Roman jurist, cited by 

Gaius in the Digest, 297. 
Trebellius Pollio, see Pollio, Trebellius. 
Treutler, Hieronymus (d. 1607), German 

jurist. 
Disputationes Selectae ad Ius Civile 

Justinianeum, 386. 
Trogus, Pompeius(ist century b.c), Roman 

historian, whose work is extant only in 

the epitome of Justin (q.v.), 280 (bis), 

283,472,510,697,770,830. 
Trovamala, Baptista (d. 1484), Italian 

canonist, also called de Salis and de 

Rosellis. 
Summa BaJ>tistiniana or Summa Rosella, 

556. 

Tryphoninus, Claudius (3d century), Ro- 
man jurist, cited in Digest. 
Disputationum Libri XXI, 254, 321 (ter), 

323, 374, 4 2 5, 673, 703, 704, 75 (bis), 

706,709,767,809. 
Tudeschis, Nicolo de, see Panormitanus. 
Tullius, see Cicero, Marcus Tullius. 
Turrecremata, Joannes a, see Torquemada, 

Juan de. 
Tuschus, Dominicus, Cardinal, see Toschi, 

Domenico, Cardinal. 

Ulpian (Domitius Ulpianus, c 170-228), 
Roman jurist, cited in the Digest. 

Ad Edictum Libri LXXXI, 39, 54, 56, 
72, 181, 193, 222, 223, 307 (bis), 326, 
387, 391, 410, 418, 432, 451, 507, 537 
(bis), 590, 623, 771, 845. 

Institutionum Libri II, 248, 249, 257, 
309,630,632,659,713,767. 

De Officio Proconsulis Libri X, 438, 457. 

Opinionum Libri VI, 209, 216, 630. 

Ad Sabinum Libri LI , 222, 272, 311, 322, 
371,642,692, 800, 829. 



Index of Authors Cited 



929 



Ulpian (fl. 310), Greek rhetorician. 

On Demosthenes, 181,215. 
Urbicus, Aggenus, see Aggenus Urbicus. 
Ursinus, Fulvius (Fulvio Orsini, 1529- 

1600), Italian scholar, editor of Selec- 

tions on Embassies, 25 1 . 

Valdes, Spanish theologian, perhaps Alfonso 

or Juan de Valdes, 397. 
Valens (c. 328-378), Roman emperor of the 
East. 
Cited in the Code, 97. 
Cited by John of Antioch, 156. 
Valentia, Gregorio de (1551-1603), Spanish 
Jesuit and theologian. 
On II. ii of Thomas Aquinas (Commen- 
tarii Theologici), 173, 624, 761. 
Valentinian (419-455), Roman emperor. 
Cited in the Code, 248, 252. 
Novel, 711 (bis). 
Valerius Flaccus (Gaius Valerius Flaccus 
Balbus Setinus, d. before 90), Latin 
epic poet. 
Argonautica, 139, 729. 
Valerius Maximus (ist century), Roman 
historian. 
Factorum et Dictorum Memorabilium 
Libri,nS, 120, 122, 130, 133,202,211, 
213, 225, 269, 272, 336, 347, 407, 412, 
422 (bis), 447, 451, 456, 503, 505, 528, 
529, 576, 652, 654, 655, 683, 691, 702, 
720, 736, 774, 779, 781, 793, 797, 799, 
800, 827, 846, 857. 
Van Reyd, Everard (1 550-1602), Dutch 
historian. 
Dutch History (in Dutch ; Latin version 
by Dionysius Voss), 604 (bis). 
Varro, Marcus Terentius (116-28 b.c), 
Latin author, 19, 833 (bis). 
Age Modo, 189-90. 
On Farming (De Re Rustica Libri III), 

187, 111, 217, 241, 680, 751, 766. 
On the Latin Language (De Lingua 
Latina), 255, 309, 430, 438, 638, 66j. 
Vazquez, Gabriel (1551-1604), Spanish 
Jesuit and theologian. 
On II. i of Thomas Aquinas (Commen- 
tarius et Disputationes), 558 (bis), 559. 
Vazquez Menchaca, Fernando (d. c. 1559), 
Spanish jurist, 29. 
Illustrium Controversiarum Aliarumque 
Usu Frequentium Libri VI, 44, 176, 
177, 179, 220, 228 (bis), 229, 263, 264, 
344, 383 (bis), 384, 385, 385-6, 426, 

3 



486, 493 (bis), 506, 579, 627, 720, 805, 

806, 807 (bis). 
De Successionum Creatione, 376, 426. 
Vegetius, Flavius Renatus (5th century), 

Latin writer. 
Rei Militaris Instituta, 86, 371, 410. 
On the Veterinary Art (Mulomedicina), 

751. 
Velleius Paterculus, Caius, see Paterculus, 

Caius Velleius. 
Venuleius, see Saturninus, Venuleius. 
Vergil, see Virgil. 

Vicerius, Conrad, see Conrad Vicerius. 
Victor, Aurelius, see Aurelius Victor, Sextus. 
Victor Vitensis (b.c. 430), an African bishop. 
Persecution of the Vandals (Historia Per- 
secutionis Africanae Provinciae, Tem- 
poribus Geiserici et Hunerici Regum 
Wandalorum), 87, 287, 520, 841. 
Victor of Utica, see Victor Vitensis. 
Victoria, Franciscus de (c. 1480-1546), 
Spanish Dominican and theologian, 
22, 205. 
Relectiones Theologicae XII : 
De Indis (Classics of Int. Law), 201, 
204, 401, 506, 550 (ter), 551, 553, 
558, 581, 584 (bis). 
On the Law of W ar (De Iure Belli, 
Classics of Int. Law), 98, 99, 103, 178, 
54> 556, 55, 560, 563, 564, 565, 
567, 587, 59> 59 2 ( bis )> 599 (quater), 
600, 628, 696, 723, 730, 735, 736, 
74> 743, 745 ( bis )> 757 (quater), 
758, 760, 761, 770 (bis). 
De Potestate Civili (Salamanca, 1565), 

159, 249. 
De Potestate Papae et Concihi (Sala- 
manca, 1565), 387. 
Victorinus, Marius (Gaius Marius Victori- 
nus Afer, 4th century), Latin rhetori- 
cian, Commentarius in Ciceronis Libros 
de Inventione, 427. 
Virgil (Publius Vergilius Maro, 70-19 b.c), 
Roman epic poet. 
Aeneid, 104, 156 (bis), 169 (bis), 196, 201, 
202, 214, 243, 247, 283, 395, 439, 454, 
455, 456, 525, 564, 583, 605 (ter), 606, 
649 (quater), 660 (bis), 673, 674, 675, 
678, 731, 735, 829, 832, 833, 857. 
Ciris, 649. 
Eclogues, 378. 

Georgics, 126, 189, 190, 203, 212, 452. 
Visigoths, Law of the, see Law of the Visi- 
goths. 

Q2 



930 



Index oj Authors Cited 



Vitruvius Pollio, Marcus (ist century b.c), 
Roman writer on architecture. 
De Architectura LibriX, 189, 313, 752. 
Vopiscus, Flavius (3d or 4th century), Latin 
biographer, 316. 
Aurelian, 785 (bis). 
Probus, 123, 317 (bis). 
Tacitus, 119. 
Vulcacius Gallicanus (36I or 4th century), 
Latin biographer. 
Avidius Cassius, 540, 570, 722, 789. 
Vulgate, Latin version of the Bible from 
theHebrew, 76, 618. 

Wacher, Martin (Matthaeus VVacker von 
Wackenfels, I7th century), German 
jurist. 
Consilia Caesarea in Controversia Saxo- 
nica, 252. 
Warnefrid, Paul, see Paulus Diaconus. 
Wehner, Paul Matthias (d. 161 2), German 
jurist. 
Consilia Franconica, 6\J. 
Wesenbeck, Matthaeus (1531-1586), Fle- 
mish jurist. 
Commentarius in Pandectas, 252. 
Isagoge in Institutiones, 686. 
Wild, Johann (Joannes Ferus, 1494-15 54), 

German Scriptural exegete, 20. 
Wilhelmus Matthiae, see Matthiae, Wil- 

helm. 
William of Newburgh (11 36-1 198), English 
Augustinian and historian. 
History of England (De Rebus Anglicis), 
114. 
Wipo (Wippo or Wibo, nth century), 
Burgundian chronicler. 
Life of Conrad Salicus (Gesta Chuonradi 
II Imperatoris), 318 (bis). 
Wisdom, see Bible. 

Wittekind (ioth century), German chroni- 
cler. 
History of Saxony (Res Gestae Saxonicae), 
279, 290, 291, 318, 319, 449, 649. 

Xenophon (c. 444-c 357 b.c), Athenian 

historian and general, 453. 
Agesilaus (Loeb), 698, 738, 792. 
Anabasis (Loeb), 106, 143, 174, 194, 195, 

197, 217, 250, 445, 471, 686 (bis), 785, 

785. 
The Cavalry Commander (Hipparchuus, 

Loeb), 605. 



On the Constitution of Athens (Respublica 

Atheniensium), 764. 
Greek History (Hellenica, Loeb), 261, 321, 

34 8 , 395, 45i, 53i, 569, 574, 625, 666, 

755,781,783,817. 
Memorabilia of Socrates (Loeb), 240, 241, 

272, 514, 610, 616, 618, 664. 
Symposium (Loeb), 514. 
On Taxes (De Vectigalibus), 66"/. 
Training of Cyrus (Cyropaedia, Loeb), 

37, 52, 73, 122, 230, 283 (bis), 509, 562, 

605, 616, 618, 635, 664, 665, 681, 686, 

737, 750, 759, 769, 77 2 , 776, 788, 821. 

Ximenes, Rodrigo, see Roderick of Toledo. 

Xiphilinus (nth century), Greek monk, 
epitomizer of the History of Dio Cas- 
sius, 85, 106, 107, 110, 144, 148 (bis), 
152, 314, 320, 388, 496, 550, 563, 588, 
648, 657, 724, 728, 729, 742. 

Zabarella, Francesco (1 360-141 7), Italian 
canonist, archbishop of Florence and 
cardinal, hence cited as Cardinal. 
On Clementines (Lectura super Clemen- 

tinis), 175. 
Consilia, 201. 
Quaestiones, 173. 
Zachariah, see Bible : Old Testament : 

Zachariah. 
Zasius, Ulrich (1461-1536), German jurist. 
Apology against Eck (Apologetica Defensio 

contra Joannem Eckium), 851. 
On Decretals, 426. 
On Digest, 252, 426. 
Singularia Responsa, 123. 
Ziegler, Caspar (1621-1690), German 
jurist. 
Conclusiones ad Auream Praxim Calvoli, 

135. 
Zoanettus,Franciscus(i6thcentury),Italian 

jurist, professor at Ingolstadt. 
De Imperio Romano Eiusque Iurisdictione, 
264. 
Zonaras, Joannes (d. 1130), Byzantine 
theologian and historian, 87. 
History (Epitome Historiae), 86, 118, 121 
(bis), 185, 253, 290, 291, 299 (bis), 314 
(bis), 317, 318, 388 (bis), 400, 440, 460, 
493, 506, 518, 528, 531, 535, 549, 576, 
577,579, 6 54,73(bis),842. 
Zosimus (5th century), Greek historian. 
History (Historiae), 276, 283, 364, 368, 
397, 440, 447, 518, 555, 648, 654 (ter), 
703 (ter), 724, 753. 



SUBJECT INDEX 



Abandoned property: 

acquisition of, 218-9, 225-6 

definition of, 223-4 

presumptions of, 221-2 
Abdication: 

effect of, upon right to make war, 157 

of throne succession, 288-9 
Acceptance of promise necessary for vali- 

dity, 338 

Accession, Roman principle of, 306-7 
Acquisition, derivative. See Alienation 
Acquisition, original: 

by law of nations, 295 ff. 

character of, 206 
Acquittal, right of, 250 
Acts: 

division of, 343 

indispensable for human life, 203 

of mixed character, 346 

reciprocal, 343-4 
Acts, permissible. See Permissible acts 
Adoption of children, right of, 255 
Adultery: 

damage incurred by, 434-5 

law of Christ regarding, 235 
Aiding enemy. See Supplying the enemy 
Air, control of use of, 190, 209 
Alienation : 

by legal compensation, 267-8 

consent of people necessary for, 263-4 

effect of, upon right to make war, 137 

of right, 260 

of sovereignty, 261-2 

public domain not subject to, by king, 264 
Alliance, unequal: 

definition of, 1 30 

leadership of, 134-5 
Alliances. See also Treaties : 

aid rendered under, 404 

breach of, 405 

effect of, upon right to make war, 417 

future, 415-6 

of Christians, 403 

renewal of, 405 
Allies : 

attack on, 817 

breach of treaty by, 815 

killing of unwilling, 723 ff. 

meaning of term, 415-6 

share in booty, 684-5 



Allodial land, succession of, 284 

Alluvial deposits : 

belong to people in case of doubt, 302-3 
distinguished from islands, 304 
law of nature regarding, 300-1 
rights of those nearest to, 303 
Roman law regarding, 299-300, 305 
when property of vassals, 304-5 

Ambassadors. See also Embassy ; Legation 
admissibility of, 440-1 
defence against, 444 
inviolability of, 438, 441 ff., 445-6 
legal status with regard to enemy destina- 

tion, 446 
legal status with regard to friendly des- 

tination, 445-6 
retaliation against, 447 
rights of, extended to suite, 447-8 
rights of, extended to movable goods, 448 
safe-conduct of, 840-1 

Ambuscade, threat of, and the right to kill, 

Animals, liability of owner for damages 

caused by, 437 
Animals, wild: 

acquisition of ownership of, 192 

considered as king's property, 297-8 

ownership of, in parks, 296 

possession acquired by appliances, 297 

recovery of ownership of, 296-7 

right to kill, 476 
Aptitude, defined, 35-6 
Arbitration: 

to end war, 823 ff. 

to obviate war, 185, 561-2 
Armistice. See Truce 
Arms. See Weapons 

Assassins, use of, against an enemy, 653-4 
Associations : 

dividing and joining of opinions in, 250-1 

order of rank in, 252 

right of majority in, 249-50 

voting in, 252-3 
Asylum. See also Refuge : 

granting of, to exiles, 820 
Authority, civil: 

acquired by war, 697-8 

mixed, 699 
Authority, intermediate governmental, 
when held absolutely, 120 



932 



Subject Index 



Baggage, extension of safe conduct to, 840 

Bailment, gratuitous, 343 

Beginnings of war, 169 

Birds, acquisition of ownership of, 192 

Blood relations, marriages of, 242 ff. 

Booty. See also Plundering: 

acquisition of, 672 ff., 684 ff. 

disposal of, by commanders, 675 ff. 

peculation in distribution of, 682-3 
Brigands. See also Pirates: 

distinction between state and, 631-2 

transformation of, into a state, 632-3 
Brothers and sisters, illegality of marriage 

of, 242 
Buving and selling, right of, 203-4 

Canons, synodical : 

bearing of, upon law of nations, 27 
Capital punishment : 

a proof of the legality of war, 66-7, 69 

attitude of Christian emperors toward, 
85-6 

legality of, 78, 84 
Captives : 

enslavement of, 690 ff. 

escape of, 693-4 

law of nations regarding, 695-6 

pledges of, 853-4 

property of, 691, 699-700, 843 

ransoming of, 841 ff. 

right to injure, 649, 650 

sparing of, 737-8 
Capture: 

after peace, 812 

of movable property, 666-7, 672 ^ 

of territory, 667 
Captured property. See Enemy Property 
Causes of war: 

distinction between just and unjust, 

. 73-; 

distinction between justifiable and per- 
suasive, 546-7 

distinguished from beginnings, 169 

doubtful, 559 ff. 

efficient, 164-5 

justifiable, 169 ff. 

persuasive, 547-8 
Causes of war, just: 

defence, 171 

injury received, 170 

punishment, 171 

recovery of property, 171 
Causes of war, unjust: 

advantage apart from necessity, 549 



desire for freedom among subject people, 

5.5 * 
desire for richer land, 550 

desire to fulfil prophecies, 555 

desire to obtain something not legally 

owed, 555-6 

desire to rule others against their will, 

.55 1 
discovery of property of another, 550 
effect of, upon justice of entire war, 

718-9 
fear of neighbouring power, 549 
refusal of marriage, 550 
title to universal empire of Church, 

.553 

title to universal empire of Roman em- 
peror, 551-2 
Chastity: 

comparable to life, 175 

defence of, justifiable, 175 

of celibacy, more praiseworthy than mar- 

riage, 642 
suicide to preserve, 460 
Children: 

of slaves, 256-7, 768 

restraining, 232 

right of succession of, 271-2 

right of, to inherit parents' property, 

269-70 
rights of illegitimate, 273, 282 
rights of parents over, 231 ff. 
rights of unborn, effect of abandonment 

upon, 226-7 
selling of, 232-3 
sparing of, in war, 734-5 
Christ, law of. See Law of the Gospel 
Christian religion : 

misinterpretation of, as a cause for war, 

518-9 
mistreatment of those who practise, as a 

cause for war, 517-8 
non-acceptance of, as a cause for war, 
516-7 
Circumcised and uncircumcised foreigners 

distinguished in Hebraic Law, 46-8 
Civil power, characteristics of, 101 
Civil war. See Rebellion 
Combat, single, to obviate war, 183, 563-4 
Combats, set, to end war, 820 ff. 
Combatants, definition of, 839 
Commanders. See also Military leaders: 

right of disposal of booty by, 675 ff. 
Commerce, freedom of passage for, 199-200 
Commodate, definition of, 355 



Subject 


! Index 933 


Community: 


Cousins, marriage of, 247-8 


duration of right to inflict punishment 


Crime : 


on, 535-6 


causes of, 494-5 


members of, share in its crime, 534-5 


causes restraining, 495-6 


responsibility of, for crime of individual, 


community responsibility for, 523 ff. 


523 ff. 


distinction between occasion and cause as 


responsibility of, for refuge afforded 


regards, 538 


wrongdoers, 526 ff. 


duress as an element of, 622 


Community of property: 


fear as an element of, 173-4 


explanation of, 186 


inclinations toward, 497-8 


becomes ownership by division or occu- 


Crimes against God: 


pation, 189 


as a cause for waging war, 598 ff. 


Compacts, division of, into personal and 


punishment of, 513-4 


real, 418-9 




Compensation, as substitute for specific 


Damages: 


performance, 800-1 


definition of, 430-1 


Concubinage: 


effect upon contracts, 801 


among Jews, 274 


extent of, 43 1 


legality of, 247-8 


liability for, by adultery, 434-5 


Conduct, safe: 


liability for, by animal or vessel, 437 


annulment of, 841 


liability for, by civil authorities, 436-7 


extension to baggage, 840 


liability for, by deceit or fear, 435-6 


extension to persons, 840 


liability for, by homicide, 434 


interpretation of right of, 839-40 


liability for, by robbery, 435 


Conference, to obviate war, 560-1 


liability for, by sureties, 629 


Conflicts, documentary, settlement of, 


liability for, primaryand secondary,432~3 


427-8 


obligation to make good, 430 


Conjectures: 


remission of, if caused by war, 810-11 


broadening the meaning of, 421-2 


resulting, 433-4 


from effect, 412 


to income, 431-2 


from elements, 412 


to reputation and honour, 437 


from reasonable motive, 412-3 


Debts: 


from subject-matter, 41 1-2 


cancellation of, by war, 811 


resort to, in case of ambiguous or contra- 


liability for, of others, 623 


dictory expressions, 41 1 


liability of subjects for ruler's, 624 


restricting the meaning of, 423 ff. 


liquidation of, under law of nature, 627 


Conqueror, rights of, 319 


non-legal, 555-6 


Conquered. See Vanquished 


seizure of goods for, 626 


Conquest. See Causes of war, unjust 


seizure of persons for, 625 


Contracts: 


Deceit. See also Ruse: 


classes of, 343 ff. 


effect of, upon liability for damages, 


equality required in, 346 ff. 


435-^ 


ofkings, 383-4,429 


Declaration of war : 


of kings as binding on heirs, 386-7 


according to law of nature, 634-5 


of kings as laws, 385-6 


according to municipal law, 637-8 


of usurpers as binding on kings, 390 


against enemies' allies, 638 


right to make exclusive, 205 


against violator of right of embassy, 640 


rights of, 35-6 


conditional and absolute, 635 ff. 


writing as necessary element of, 428 


form of, 593 


Controversies, between citizens of allied 


in perfect war, 624 


states, 132-3 


includes subjects of sovereign, 638 


Conventions, public, division of, 391 


interval between, and hostilities, 639-40 


Corporations, right to sue members of, for 


procedure of, among Romans, 172 


corporation debt, 623 


reason for public, 639 



934 



Subject Index 



Defence : 

against person useful to state, 176 

as just cause of war, 171 

in public war, 184 

of chastity, justifiability of, 175 

of life, justifiability of, 175 

of limb, justifiability of, 175 

of property, according to Hebraic law, 
180 

permissibility of refraining from, 176 
Dependence, mutual, between king and 

subjects, iii 
Dependent persons. See also Subjects: 

defence of, in an unjust war, 595 

imposition of taxes on, for non-service in 
war, 594 

right of decision concerning war, 587 ff. 

right of decision in doubtful cases, 590 ff. 

surrender of innocent, to prevent war, 

579 

war in behalf of, 578 
Descendants, order of succession of, 282-3 
Desert places, possession of, by foreigners, 

202-3 
Deserters : 

killing of, 647 

punishment of, 160 

receiving, 622 
Desertion of post, penalty for, 149 
Devastation: 

extent of legality of, 745 ff. 

of sacred enemy property, 75 1 ff. 
Dictator, as possessor of sovereignty, 114 
Disinheritance: 

effect of, on succession to property, 273 

effect of, on throne succession, 288 
Disowning, effect of, on succession to pro- 

perty, 273 
Divorce, according to law of nature and law 

of the Gospel, 234-5 
Domain, eminent. See Eminent domain * 
Domain, public: 

inalienability of, by king, 264 

right of pledging, 265 
Doubt: 

course to be followed in case of, 559-60 

influence of judgment on, 558-9 

source of, in moral questions, 557-8 
Duress, as an element of crime, 173-4, 622 



Embassy. See also Legation; Ambassador: 
admissibility of, 440 
breach of right of, as a cause of war, 640 



Eminent domain: 

acquisition of, 219 

right of subjects subordinate to, 385, 
796-7, 807 
Ending war: 

by arbitration, 823 ff. 

by lots, 820 

by set combats, 820 
Enemies: 

acts permissible against, 599 ff., 788-9 

declaration of war against allies of, 638 

definition of, 630 

good faith between, 804 

harming, without orders, 791 

lying to, 618, 620-1 

remission of punishment of, 731 ff. 

right to injure, 647 ff. 

seizure of goods of, on ships, 668 

enforcement of right, by violence, 625-6 
Enemy property: 

acquisition of, under law of nations, 
664 ff. 

acquisition of, under law of nature, 663-4 

captured in unlawful war, 778-9 

occupation of, for subsequent debt, 

758-9 

sacred, 658 ff., 751 ff. 

seizure of, for debt, 757-8 

seizure of, for punishment, 758 

seizure of, on ships, 668 

seizure of, taken from others, 668 ff. 

seizure of, tempered with humanity, 
759-60 

treatment of, 658 ff. 
Escheat, right of, 219 
Exchange, a form of contract, 345 
Excuse for war, 170 

Exemptions from military service, 165-6 
Exiles: 

illegality of State's claim over, 254 

receiving, 819-20 
Extortion, obligation of restoration after, 
327 

Faculty, definition of, 35 
Faith, good. See also Promises : 

between enemies, 804 

implied, 857 ff. 

in war, 802-3 

keeping of, 800 ff. 

of private person in war, 852-3 

to preserve peace, 860 

with enemies, 792-3, 799-800, 851 

with pirates and tyrants, 793-4, 851 



Subject Index 



935 



False accusation, threatened, extent of de- 

fence against, 174 
Falsehood : 

character of, when unpermissible, 613-4 

in commerce, 609, 613 

nature of, 611-12 

permissibility of, 609 ff. 

permissibility of, before infants and in- 
sane persons, 614 

permissibility of, before third persons, 

6l 5. . . . 

permissibility of, by speaker of superior 

right, 616-7 

permissibility of, when person wishes to 
be deceived, 615-6 

refraining from, more noble, 620-1 

to an enemy, 618-9 

to save life of innocent person, 617 

unpermissibility of, in oaths, 619-20 

unpermissibility of, in promises, 619 
Family rights, extinguishment of, 310 
Farmers, sparing of, in war, 737 
Fathers-in-law, illegality of marriage of, 

with daughters-in-law, 242 
Fear as a cause of wrongdoing, 173-4, 622 
Feudal tenure, sovereignty in, 1 36-7 
Fiefs : 

sovereignty in, 137 

succession of, 284 
Fish: 

acquisition of ownership of, 192 

ownership of, in ponds, 296 
Force : 

use of, as an element of crime, 173-4, 622 

use of, as punishment, 600 

use of, to secure rights, 91 
Foreigners : 

as enemies, 646 

right of, to acquire desert land, 202 

right of, to acquire residence, 201-2 

right to seek marriage with, 204 

rights of, 204-5 
Formalities : 

in declaring war, 637-8 
Fowling, control of, 190 
Friendship : 

acts contrary to, 818-9 

origin of, in nature, not necessity, 177 

Gain, obligation to restore, from another's 

property, 322 
Garrisons, necessity of, for security of 

victors, 772-3 



Generals : 

power of, over subordinates, 847-8 
power of, over territory taken in war, 849 
power of, to accept surrender, 850 
power of, to make peace or truce, 848 

God: 

duties of Christians toward, 1 3 
existence of, presupposed by natural law, 

13-14 

generally accepted ideas concerning, 
510-11 

judged by right reason, 40 

suspension of natural law by, 40 
Goods, enemy. See Enemy property 
Gospel, law of the. See Law of the Gospel 
Government : 

separation of powers of, 101 ff. 

types of, 107 ff. 
Grants, revocability of, of kings, 389-90 
Guilty, sparing of, in war, 742 



Harbours, ownership of, 209-10 
Hebraic law. See Law, Hebraic 
Hebrew writers, bearing of, upon law of 

nations, 27 
Heirs : 

extension of punishment to, 5445 

liability of, 545 

rights of, 319 
History, bearing of, upon law of nations, 26 
Holy orders, exemption of men in, from 

military service, 166 
Homicide, liability ior damages by, 434 
Honour : 

liability for damage to, 437 

sense of, applied to slavery, 718 

sense of, things forbidden by, 716-7 
Hostages : 

as pledges, 856 

escape of, 829 

obligation of, 830-1 

release of, 829-30 

right to injure, 651, 828-9 

selection of, 828 

sparing of, 742-3 
Hostile acts, distinction between public and 

private, 671-2 
Husband: 

marriage of, with wife of another void, 

239 
power of, over wife's oaths, 376 

right of, over wife, 234 

right to sue, and wife, for debts, 623 



93^ 



Subject Index 



Idolatry in Roman army, 87-8 
Impunitv: 

in killing women and children in war, 648 

in public war, 643 ff. 

in slaying deserters, 647 

of captives, 649-50 

of suppliants, 650 
Independence: 

non-permanence of right of, 229-30 
Individuals, acts permissible against enemy 

by, 788-9 
Infants: 

killing of, in war, 648 

permissibility of lying before, 614 

right of, regarding ownership, 208, 231 
Infeudation, as conditional alienation, 263 
Inheritance, kingdom as part of, 284 
Injure, right to: 

assassins, 653 ff. 

captives, 649-50 

deserters, 647 

in territory of enemy, 646 

innocent persons in war, 648, 733 ff. 

moral justice of, 723-4 

subjects of enemy, 647 

suppliants, 650 

unwilling allies, 723 ff. 

when unpremeditated, accidental or 
through ignorance, 725 ff. 

women and children in war, 648, 733 ff. 
Injury, as a cause of war, 170, 172, 186 
Innocent persons, sparing of, in war, 733-4 
Insane persons: 

permissibility of lying before, 614 

right of, regarding ownership, 208 
Insurance: 

as a form of contract, 345 

valuation of, 358 
Interest: 

advantages similar to, 357 

civil law concerning, 358 

forbidden by law of nature, 355-6 
Interpretation: 

broad and narrow, 413, 421-2 

conjectured from effect, 412 

conjectured from reasonable motive, 

conjectured from subject-matter, 41 1-2 
of ambiguous and contradictory expres- 

sions, 41 1-2 
of technical terms, 410 
of words, 409-10 
restricting the meaning, 423 ff. 
rules regarding, 414-5 



Interregnum, in Rome, 129 

Inundation, ownership of land not lost by, 
301-2 

Inviolability, personal, of king, 15 1-2 

Islands: 

occupation of, 192 

ownership of, by law of nature, 300-1 

ownership of, in Roman law, 299-300 

Israelites, laws of. See Law, Hebraic 

Jewish law. See Law, Hebraic 

Joint undertakings for maritime operations, 

advantages of, 359 
Just, definition of term, 38 
Justice: 

attributive, definition of, 37 

contractual, 36 

difference between attributive and ex- 
pletive, 37 

distributive, 37 

expletive, 36 

influence of consciousness of, upon war, 
19-20 

restorative, 37 

sense of, attributed to brute creatures, 42 

Kill, right to : 

as alternative to escape, 179 

assassins, 653 ff. 

captives, 649-50 

deserters, 647 

in defence of limb, 175 

in defence of property, by law of nature, 

179 
in defence of property, by law of the 

Gospel, 182 
in territory of enemy, 646 
in war, 644-5 
in war, reason for, 650-1 
innocent persons in war, 648, 733 ff. 
moral justice of, 723-4 
robbers or thieves, 92, 476 
subjects of enemy, 647 
suppliants, 650 
thief at night, 92 
to avoid indignity, 178 
to ward off blow, 178 
under Jewish law, 477 
unwilling allies, 723 ff. 
when injury unpremeditated, accidental 

or through ignorance, 725 ff. 
wild animals, 476 
women and children in war, 648, 733 ff. 



Subject 


Index 937 


Kings : 


relationship to natural law, 48 ff. 


acts of, 381-2 


relationship to law of the Gospel, 48 ff., 


as in absolute power, 115 ff. 


61 ff. 


as not absolute, 119-20 


Law, human, division of, into three classes, 


division of power of, 125 ff. 


44 


division of sovereignty of, 123-4 


Law, municipal: 


inviolability of person of, 15 1-2 


definition of, 44 


legal character of contracts of, 385-6 


distinguished from law of nations, 24 


obedience of subjects of, mandatory, 


distinguished from law of nature, 24, 192 


\39-4 


founded on natural law, 1 5 


obligation of, to contracts, 383-4 


on injuring the enemy, 788-9 


obligation of, to contracts of usurpers, 390 


on interest, 358 


obligation of, to oaths, 381-2 


on parental power over children, 233-4 


obligation of, to promises, 12 1-2, 383 


on postliminy, 707-8, 713 


obligation of, to refrain from war for sake 


origin of, 14-15 


of self and dependents, 570-1 


Law, natural. See Law of nature 


obligation of heirs to contracts of, 386 


Law of nations : 


obligation of successors to contracts of, 


acquisition of property captured under, 


386-7 


664 ff. 


regents for, 120-1 


definition of, 44 


revocability of grants of, 389-90 


distinguished from law of nature, 24 


right of, to make peace, 804-5 


distinguished from municipal law, 24 


right to make war against, 156 ff. 


distinguished from Roman law, 28-9 


right to make war to prevent alienation of 


early writers on, 22-3 


kingdom by, 157 


existence of, proof of, 44 


yielding of right by, to avoid war, 569-70 


existence of, reason for, 17-18 




necessity of treating, 9, 20 ff . 


Land, unoccupied: 


on assassins and spies, 654-5 


occupation and ownership of, 19 1-2 


on captives, 695-6 


right of passage over, 196 ff. 


on capture, 666 ff. 


Law: 


on declaration of war, 634-5, 637 


as a body of rights, 35 


on enemy property, 658 ff., 664 ff. 


as a rule of action, 34 


on interval between declaration and war, 


as a statute, 38 


640 


effective even without sanction, 16 


on prisoners of war, 690-1 


necessary for every association of men, 17 


on public and private hostile acts, 671-2 


not founded on expediency alone, 17 


on rape, 656-7 


not in abeyance in war, 18-19 


on right of embassy, 438-9 


origin of, 10 ff. 


on right of sepulchre, 450 ff. 


Law, divine: 


on right to injure enemy, 647-8, 788-9 


definition of, 45 


on sacred enemy property, 658-9 


division of, into universal and particular, 


on seizure of property acquired by enemy, 


+ 5 . 


668-9 


particular, binding on Jewish people, 45 


on use of poison in war, 65 1 ff. 


particular, not binding on non-Jews, 45-6 


origin of, 15 


Law, equatorial, 35 


relationship of Hebrew writers to, 27 


Law, Hebraic: 


relationship of history to, 26 


given by God, 45 


Law of nature : 


not binding on non-Jews, 45 ff, 


apparent changeability of, 40 


not opposed to war, 57 ff., 75 


corroborated by sacred history, 14 


on defence of property, 180 


definition of, 38 


on enslavement, 103 


distinguished from divine law, 39, 507 


on killing, 477 


distinguished from law of the Gospel, 61 


on rebellion, 140 


distinguished from Hebraic hw, 48 ff. 



93 



Subject Index 



Law of nature (ccntinued) 

distinguished from law of nations, 23-4, 41 
distinguished from municipal law, 24, 

192, 385 
distinguished from national customs, 507 
distinguished from volitional law, 38-9 
existence of, proof of, 23-4, 42 ff. 
extends to acts of the human will, 39 
evident provisions of, 507-8 
on acquisition of possession and owner- 

ship through another, 670-1 
on declaration of war, 634-5 
on divorce, 234 
on enemy property, 663-4 
on injuring the enemy, 788-9 
on interest, 355 

on killing in defence of property, 179 
on liquidation of debts, 627 
on marriage without parental consent, 

237-8 
on monopolies, 353 
on occupation of movables, 207-8 
on ownership of islands, 300-1 
on parental power, 233-4 
on polygamy, 234 
on rebellion, 139-40 
origin of, 13 
perpetual, 49 

presupposes existence of God, 13-14 
reinforced by expediency, 15 
rights granted by, 203 
unchangeable, 40, 49 
written in hearts of men, 47 
Law of the Gospel: 

not opposed to war, 63 ff. 

on divorce, 234-5 

on the permissibility of private war, 93 

on right to kill in defence of property, 

182 
relationship of, to Hebraic law, 48 ff ., 61 ff. 
relationship of, to natural law, 61 
Law of war. See also Law of nations : 
acts permitted by, 643 ff. 
definition of, 34 
on acquisition of property captured in 

war, 663-4 
on right to injure suppliants, 649-50 
on right to injure women and children, 

648-9 
on right to pillage and destroy sacred 

property, 659-60 
Law, rectorial, 35 
Law, Roman: 

bearing of, upon law of nations, 28-9 



on enslavement, 103 

on ownership of islands, 299-300 
Law, volitional: 

definition of, 38 

division into human and divine, 44 

divine, definition of, 45 

divine, promulgation of, 45 
Lawful war. See War, lawful 
League of Christians against enemies of 

Christianity, 403 
Legation, right of. See also Ambassadors; 
Embassy: 

extent of exercise of, 439-40 

importance of, 449 

origin of, in law of nations, 438-9 
Letters of marque, 626-7 
Lie. See Falsehood 
Liege-fiefs. See Fiefs 
Liquids. See Sea 
Loss, distinction between direct and in- 

direct, 537-8 
Loss of power by king, 156 ff. 
Lots, drawing of, to end war, 563, 820 

Majority, rule by, 249-50 

Management, called pretence, by Greek 
fathers, 609 

Mandate, execution of, 423 

Marriage: 

definition of, 234 

of parents with children void, 239-40 

parental consent to, in law of nature, 

2 37~ 8 
permissibility of, 642 

refusal of, as a cause for war, 550 

right to seek, in foreign country, 204 

validating of unlawful, 248-9 

with blood relations forbidden, 242 ff. 

with husband or wife of another void, 239 

with other relatives, 245-6 

Materials, mingling of. See Accession 

Merchandise in transit, taxability of, 200-I 

Merchants, sparing of, in war, 737 

Migration, rights of people not destroyed 

by> 3H 

Military leaders. See also Commanders: 
acts of, contrary to instructions, 846-7 
obligation of supreme authority for pro- 

mises of, 846-7 
promises of, 845 

Military service. See also War: 

attitude of early Christians toward, 82 ff. 

Mingling of materials. See Accession 

Money, as a medium of exchange, 354 



Subject Index 



939 



Monopolies, according to the law of nature, 

353 

Moses, law of. See Hebraic law. 

Mothers-in-law and sons-in-law, illegality 
of marriage of, 242 

Movable property: 
capture of, 666-7 
capture of, by private act under muni- 

cipal law, 673 
capture of, by public act, 673-4 
current rule on, 712 ff. 
earlier rule of postliminy of, 712 
effect of seizure of, in war, 672-3 
not belonging to enemy, 688-9 
possession of, prevention of, 207-8 

Municipal law. See Law, municipal 

Mutuum, definition of, 355 

Natural law. See Law of nature 
Necessity: 

as a cause of war, 599-600 

effect of, upon private ownership, 193 

extreme, resistance in case of, 148-9 
Neutrals : 

duty of, toward belligerents, 786-7 

property of, 783 ff. 
New Testament, relationship of, to law of 
nations, 27 

Oaths : 

acts contrary to, 375-6 

construction of, 367-8 

effects of, 372 

falsehood in, 619 

force of, 362-3 

hindering moral good, 368-9 

in name of false gods, 371-2 

in name of God, 370, 375 

intelligibility necessary for, 363-4 

intention necessary for, 363 

obligation of kings to, 381, 382 

of subject, power of superior concerning, 

37^-7 . ' 

procured by fraud, obligation of, 366-7 

rights acquired by, 372-3 

teachings of Christ against taking of, 

377-8 , 

to brigands, obligation of, 795-0 
to faithless person, 374 
to God alone, obligation of heirs toward, 

375 M . 

to perform an act temporanly lmpos- 

sible, 369-70 
to perform an impossible act, 369 



to perform an unlawful act, 368-9 

to person not wishing to have it kept, 
obligation of, 375 

to pirate or tyrant, 373-4 

unsworn pledges of good faith as, 380 
Obedience : 

to father, 587 ff. 

to superiors, 141 ff., 153 ff. 

to usurpers, 159 
Obviation of war. See War, prevention of 
Occasions for war, just, 169 
Occupation: 

definition of, 190-1 

of movable things, prevention of, 207-8 

of rivers, 208-9 

twofold character of, 206-7 
Officials, public, authorization of public 

war by, 98-9 
Offspring, ownership of, 306 
Old men, sparing of, in war, 734-5 
Old Testament, relationship of, to law of 

nations, 27 
Opinions, combination and separation of, 

250-1 
Orators, relationship of, to law of nations, 

26 
Ownership : 

abandonment of, 220 ff. 

by infants, 208 

by insane persons, 208 

by prescription, 220 

by usucaption, 220 

community of, over soil and crops, 308 

distinction of, from sovereignty, 207 

obligation arising with, 320 ff. 

of alluvial deposits, 299-300 

of birds, 192 

of fish, 192, 296 

of islands, 299-300 

of offsprings, 306 

of sea, 190 ff. 

of treasure trove, 298-9 

of wild animals, 192, 296 

right of private, 35, 186 ff. 

termination of, 310 

transfer of, in sale, 352-3 

Pardon: 

permissibility of, 489-90 

permissibility of, after establishment of 

penal law, 491-2 
permissibility of, exceptions to, 491 
permissibility of, prior to penal law, 

490-I 



940 



Subject Index 



Parents : 

marriage of, with children void, 239 ff. 
power of, by law of nature and municipal 

law, 233-4 
property of, right of children to, 269-70 
sins of, acts of God against children for, 

sins of, punishment of children for, 5 39-40 

restraint of children by, 232 

right of, to sell children, 232-3 

rights of, over children, 231 
Parley, good faith in, 857-8 
Partnership, kinds of, 358-9 
Passage, right of, over land and rivers, 196 ff. 
Patronage, effect of, on independence, 132 
Peace : 

alienation as the price of, 805-6 

duty of preservation of, 576-7 

interpretation of covenants of, 808-9 

obligation of people to terms of, 806-7 

right to make, in a democracy, 805 

right to make, in kingdom, 804 

violation of, 814 ff. 
Peculation in distribution of booty, 682-3 
People, loss of rights of the, 310 ff. 
Perfect war. See War, perfect 
Permissible acts in war: 

against prisoners, 761-2 

against slaves, 761 ff. 

against those supplying the enemy, 601 ff. 

by law of nature, 599-600 

during truce, 8356 

illegality and impunity of, 641 ff. 

to harm enemy, 643-4 
Persons, rights over, 230 ff. 
Philosophy, relationship of, to law of 

nations, 24-6 
Pillaging, permissibility of, 680-1 
Piracy, restrictions against, 215 
Pirates: 

distinction between people acting un- 
justly and, 631-2 

good faith with, 793-4 

obligation of oaths to, 373-4 

property captured by, recoverable with- 
out postliminy, 713 
Pledges: 

as security for specific performance, 603 

by sureties, 623 

of private persons in war, 851 ff. 

prohibition of taking of, in time of Jus- 
tinian, 623 
Pledging of state, consent of people neces- 
sary for, 263 



Plot, right to kill to escape, 174 
Plundering, against Christian laws, 790-1 
Poets, relationship of, to law of nations, 26 
Poisoning : 

of enemies, permissibility of, 651-2 
right to kill to escape, 174 
Pollution of waters, 653 
Polygamy, permissibility of, in law of the 

Gospel and law of nature, 234 
Possession. See also Usucaption: 
acquisition of, 192 
acquisition of, over wild animals by 

appliances, 297 
as controlling factor in case of doubt, 

564-5 
effect of loss of, upon ownership of wild 

animals, 296-7 
types of, 206-7 
Possessions of subjects, liability of, f